Amicus Briefs Archives (1999-2004)

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.

Topics covered below include:
Academic Freedom and Teaching
Academic Freedom and Collective Bargaining
Academic Freedom: Internet and Computer Use
Academic Freedom and Faculty Speech
Academic Freedom and Institutional Matters
Academic Freedom and University Publications   
Discrimination
Affirmative Action

See also AAUP Amicus Briefs, 2005-2012.

Academic Freedom and Teaching

Axson-Flynn v. Johnson (University of Utah)

Christina Axson-Flynn is a former student at the University of Utah. She is also a member of the Church of Latter-Day Saints. Axson-Flynn has sued her university theater department professors for violating her right to free speech and free exercise of religion under the First Amendment by requiring, as part of the curriculum, that students perform in-class plays, despite Axson-Flynn's religious objections. As part of the theater department curriculum, the professors assert that "it is an essential part of an actor's training to take on difficult roles, roles which sometime[s] make actors uncomfortable and challenge their perspective." The student alleges that she told the theater department before being accepted into the "Actor Training Program" that she refused to "take the name of God or Christ in vain" or use certain "offensive" words. After she was accepted into the program, she changed some words in assigned scripts for in-class performances so as to avoid using words she found offensive. Her professors warned her that she would not be able to change scripts in future assignments. Axson-Flynn dropped out of the special theater program, and sued her professors. In August 2001 the district court ruled against the student. The court hypothesized that if the curriculum requirements were to constitute a First Amendment violation, "then a believer in 'creationism' could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class." A copy of the federal district court opinion is available at http://www.nysd.uscourts.gov/courtweb/pdf/D10utxc/01-08418.PDF. Axson-Flynn appealed the ruling to the U.S. Court of Appeals for the Tenth Circuit. The AAUP filed an amicus brief  (pdf) in support of the professors and university in May 2002. In the brief the AAUP argues that: (1) seeking to hold professors liable for damages because they insist that students complete established course requirements contravenes settled principles of First Amendment faculty academic freedom; and (2) giving a high level of deference to academic judgments and requirements established by university faculty is proper. Oral argument before the Tenth Circuit was heard November 19, 2002.

Status: On February 3, 2004 the Tenth Circuit reversed and remanded the lower court. While the panel of three judges clearly embraced the notion that courts should defer to the professional judgment of faculty to determine what is pedagogically appropriate in the college classroom, the court ultimately concluded that "[v]iewing the evidence in a light most favorable to Axson-Flynn, . . . . there is a genuine issue of material fact as to whether [the professors'] justification for the script adherence requirement was truly pedagogical or whether it was pretext for religious discrimination." The court did not recognize a separate right of academic freedom under the First Amendment. It nonetheless observed that the First Amendment must be applied within the context of the university. Unfortunately, the court analyzed this case under the Hazelwood decision, which arose in the K-12 setting, and applied that analysis to curricular speech in colleges and universities.

Linnemeier v. Birck (The "Corpus Christi" Case)

This case involved efforts by some taxpayers and Indiana state legislators to compel a state university--the Indiana University-Purdue University, Fort Wayne (IPFW)--to halt the campus production of a controversial play (Terrence McNally's "Corpus Christi"). The plaintiffs alleged that the play is an "undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and therefore the performance of the play on a public university campus violated the separation of church and state under the Establishment Clause of the First Amendment. In July 2001 the Indiana district court denied the request by the plaintiffs to issue a preliminary injunction to stop the production of the play, ruling that the university's on-campus production of the play did not violate the Establishment Clause. A copy of the federal district court opinion is available at http://laws.findlaw.com/7th/013002.html. AAUP prepared an amicus brief (pdf) in August 2001, arguing that allowing the plaintiffs to interfere with the faculty's approval of a student-selected play to fulfill academic graduation requirements would have violated the First Amendment protections of free expression, including the First Amendment right of individual professors to academic freedom. Furthermore, the Association argued in its brief that the performance in a state university theater of play with a religious theme, even one that may offend religious beliefs, would not violate the Establishment Clause. 

Status: In August 2001 the Seventh Circuit denied the plaintiffs request for a stay pending their appeal from the district court's refusal to grant a preliminary injunction. The majority opinion (2-1) was penned by Judge Posner. He opined: "Classrooms are not public forums; but the school authorities and the teachers, not the courts, decide whether classroom instruction shall include work by blasphemers." Judge Posner reasoned: "The contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to conventional Christian beliefs is absurd. It would imply that teachers in state universities could not teach important works by Voltaire, Hobbes, Hume, Darwin, Mill, Marx, Nietzsche, Freud, Yeats, Heidegger, Sartre, Camus, John Dewey, and countless other staples of Western culture." He concluded that "[a]cademic freedom and states' rights, alike demand deference to educational judgments that are not invidious . . . ." In September 2001 the Seventh Circuit granted the university's motion to dismiss the case as "moot." Read the decision (.pdf)

Southern Christian Leadership Conference v. Louisiana Supreme Court

The Louisiana Supreme Court amended a rule that imposed limits on the types of clients law school clinics may represent. A number of plaintiffs, including professors and students, challenged the rule, alleging, in part, that it violated the academic freedom of professors to teach and students to learn. The federal district court ruled that the amended rule did not violate the academic freedom of professors. The plaintiffs appealed to the Fifth Circuit. AAUP joined the Association of American Law Schools (AALS) and the Clinical Legal Education Association (CLEA) in filing an amicus brief with the federal appellate court in January 2000. The brief asserted that the amended rule violates the academic freedom of professors by restricting what may be taught and how it may be taught because no countervailing compelling state interest exists. In so doing, the brief recognized that higher education extends beyond the traditional classroom, and that clinical programs are a vital component of legal education to which the protections of academic freedom apply.

Status: In May 2001 the Fifth Circuit ruled that the state supreme court's limits on the types of clients law school clinics may represent do not violate the First Amendment. The court found that the indigence provision of the rule, which limited the types of clients law clinics could represent based on income, did not, on its face, "implicate any speech interests." Next the court held that the state supreme court's solicitation restrictions did not violate the plaintiffs' rights of free speech: "The rule only prohibits the non-lawyer student members of the clinics from representing as attorneys any party the clinic has so solicited. . . . No one is required to participate in any of the clinical programs, and even if someone chooses to, they are not punished for or prohibited from speaking. At most, Rule XX indirectly discourages speech-by refusing the educational experience of acting as an attorney in a particular matter to unlicensed student practitioners in clinics whose members or employees engaged in solicitation of that matter." In so doing, the court noted that the impact of the court's rule "on the educational experience is far from extreme." Lastly, the court found that the rule was viewpoint neutral, and was not retaliatory. The court found "no legally significant chilling effect on the expressive speech of any of the Plaintiffs in this case," even though the court acknowledged that "the clinics themselves will either be forced to change their educational model or to refrain from soliciting particular clients." In the end, however, "this minimal impact on the clinics" was not suppressive. The Supreme Court declined to review the case.

Academic Freedom and Collective Bargaining

Brown University and Columbia University (The "Teaching Assistants" Cases)

The National Labor Relations Board (NLRB) granted review in these two cases, which raise the issue, again, about whether graduate students are employees under the National Labor Relations Act (NLRA). In Brown University and Columbia University the administrations contend that the unionization of graduate students who are employees violates the academic freedom of institutions. In May 2002 the AAUP filed an amicus brief in support of the graduate assistants, arguing that the Board correctly decided in New York University that collective bargaining does not violate the academic freedom of universities. The AAUP argues in its amicus brief that: (1) the First Amendment does not immunize universities from the NLRA; (2) national AAUP policies on faculty and graduate student unionization, and local AAUP faculty bargaining experience, demonstrate that unionization is consistent with academic freedom; (3) graduate assistant unionization does not violate academic freedom or harm faculty-student mentoring relationships; and (4) state courts have found collective bargaining by student-employees compatible with academic freedom. In the brief the Association further contends that teaching as an academic requirement for graduate assistants should not, on its own, preclude finding that graduate assistants are employees. Read the brief (pdf).

Status: On July 13, 2004 the National Labor Relations Board issued its decision in Brown University. The Board ruled in a 3-2 decision that graduate assistants are not employees under the National Labor Relations Act, thereby overruling New York University, 332 NLRB 1205 (2000), in which AAUP also filed an amicus brief in support of the graduate assistants. In NYU the Board ruled that graduate assistants were employees under Section 2(3) of the NLRA. The Brown University Board overturned the recent NYU decision, concluding that "NYU was wrongly decided and should be overruled." The Board in Brown University held that students are not employees: "Because [graduate assistants] are first and foremost students, and their status as graduate student assistants is contingent on their continued enrollment as students, we find that they are primarily students." A copy of the decision is available on the NLRB website: http://www.nlrb.gov/nlrb/shared_files/decisions/342/342-42.pdf.

The Trustees of the University of Pennsylvania

On May 14, 2003 the National Labor Relations Board (NLRB) granted review in this case, which raises the issue, once again, about whether graduate students are employees under the National Labor Relations Act (NLRA). In that review, the Board may revisit its decision in New York University, 332 N.L.R.B. No. 111 (2000), in which the AAUP filed an amicus brief. In New York University, the Board held that certain graduate assistants at NYU were employees under the Act and, therefore, could choose to unionize. In University of Pennsylvania the administration contends that the unionization of graduate students who are employees violates the academic freedom of institutions. On May 27, 2003 the AAUP filed an amicus brief in support of the graduate assistants, arguing that the Board decision in New York University, which found that collective bargaining does not violate the academic freedom of universities, was well reasoned and should not be revisited. The AAUP argues in its amicus brief that: (1) the First Amendment does not immunize universities from the NLRA; (2) national AAUP policies on faculty and graduate student unionization, and local AAUP faculty bargaining experience, demonstrate that unionization is consistent with academic freedom; (3) graduate assistant unionization does not harm faculty-student mentoring relationships; and (4) institutional academic freedom concerns are best addressed through collective bargaining, not in determining whether graduate assistants are employees. In the brief the Association further contends that nothing in the Family Educational Rights and Privacy Act dictates denying graduate assistants the protection of the NLRA, and that teaching as an academic requirement for graduate assistants should not, on its own, preclude finding that graduate assistants are employees. A copy of the brief is available (.pdf).

Status: This case was essentially overturned by the Brown University decision.

New York University and United Auto Workers (NYU and UAW)

This National Labor Relations Board (NLRB) case raised the issue of whether graduate assistants are "employees" under the National Labor Relations Act (NLRA). In April 2000 the NLRB Regional Director (Region 2) ruled that graduate assistants at NYU were employees under the NLRA, and NYU appealed the Region 2 decision to the NLRB. In June 2000 AAUP filed an amicus brief  (pdf) in support of the UAW, contending that the unionization of graduate assistants will not violate NYU's institutional academic freedom, disrupt graduate student involvement in university governance, or interfere with the mentoring relationships between faculty members and their graduate students. The brief argued that AAUP's policies and bargaining experience make clear that collective bargaining is consistent with academic freedom, shared governance and mentoring relationships.

Status: In October 2000 the NLRB issued a decision that upheld the Region 2 Director's ruling that NYU graduate assistants were employees under the National Labor Relations Act and, therefore, may unionize. In so doing, the Board rejected the university's claim "that collective bargaining with graduate assistants will infringe on academic freedom." The Board reasoned: "While mindful and respectful of the academic prerogatives of our Nation's great colleges and universities, we cannot say as a matter of law or policy that permitting graduate assistants to be considered employees entitled to the benefits of the Act will result in improper interference with the academic freedom of the institution they serve." The decision is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=nlrb&docid=f:332-111.htm.

Academic Freedom: Internet and Computer Use

Urofsky v. Gilmore

The Commonwealth of Virginia passed a statute that restricts the ability of state employees to access sexually explicit material on state-owned or state-leased computers. Several Virginia public college and university professors challenged the law, alleging that it interferes with their academic freedom to research and teach. A federal district court ruled in favor of the professors, and the Commonwealth appealed to the Fourth Circuit. AAUP and The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia filed a friend-of-the-court brief with the Fourth Circuit in June 1998, arguing that the law violates the academic freedom of professors by inhibiting their use of the Internet as a teaching and research tool. A three-judge panel of the Fourth Circuit ruled in February 1999 that the state law that prohibits the use of state-owned computers to view sexually explicit material does not violate the First Amendment. That court decision failed to address the academic freedom concerns of faculty members in higher education institutions. In early June the Fourth Circuit granted the professors' motion for a hearing before the full court. In June 2000 the Fourth Circuit, in a 8-4 decision, ruled that "the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First Amendment." In so doing, the majority of the court asserted that academic freedom for individual professors is merely a professional norm, not a constitutional right. As Chief Judge Wilkinson, who concurred in the judgment only (but dissented from the majority's reasoning) wrote: "the majority accords the speech and research of state employees, including those in universities, no First Amendment protection whatsoever." He continued: "I offer no apology for believing, along with the Supreme Court . . . in the significant contribution made to society by our colleges and universities. . . . I fear the court forgets that freedom of speech belongs to all Americans and that the threat to the expression of one sector of society will soon enough become a danger to the liberty of all." The opinion is available online at http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=4th&navby=case&no=981481Pv2. In September 2000 the professors filed a petition for writ of certiorari with the United States Supreme Court, seeking that Court's review of the Fourth Circuit decision. In support of that petition, the AAUP and The Thomas Jefferson Center for Free Expression filed an amicus brief (.pdf) in November 2000. The Association and The Thomas Jefferson Center for Free Expression argued in their brief that: (1) the Fourth Circuit majority decision conflicted with the Supreme Court's and other circuit courts' rulings that clearly recognize academic freedom as an individual right of professors; (2) the Fourth Circuit majority opinion significantly misconstrued the Supreme Court's test on "matters of public concern" as well as conflicted with at least five courts of appeals that recognize the public interest of employee speech; and (3) the Fourth Circuit majority's approval of the Virginia statute's licensing scheme contravened the Supreme Court's First Amendment rulings because the law discriminates based on content and constitutes an impermissible prior restraint.

Status: In January 2001 the U.S. Supreme Court declined to hear the case.

Junger v. Daley

This case involved a faculty member's right to post his own encryption programs on the Internet. Professor Junger is a law professor at Case Western Reserve University who teaches a course called "Computers and the Law." Asserting his First Amendment rights, he sued the U.S. Department of Commerce, challenging regulations that prohibit him from posting to his website various encryption programs that he has written to show his students how computers work. AAUP and The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia filed an amicus brief with the Sixth Circuit in March 1999. The brief contended that the cryptographic source code is expression that is protected under the First Amendment, and that such code is most clearly protected in the context of scholarly and research communication. (The federal government has recently eased some of its restrictions on encryption, but the academic freedom concerns remain.)

Status: In April 2000 the Sixth Circuit issued a unanimous 5-page decision, ruling that the First Amendment protects computer source code. The decision is available at http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=00a0117p. 

Academic Freedom and Faculty Speech

This case involved the dismissal of a tenured faculty member from the Saint Meinrad School of Theology who signed an open letter to the Pope, asking that continued discussion be permitted concerning the question of ordaining women to the priesthood. Dr. McEnroy signed the open letter as a private citizen but was fired for "public dissent," and sued the institution for breach of contract. AAUP censured Saint Meinrad on due process and academic freedom grounds triggered by Dr. McEnroy's dismissal. AAUP filed an amicus brief in July 1998, arguing that the professor's dismissal violated the institution's own policies, and emphasizing the importance of academic freedom and due process rights of faculty members at religiously affiliated institutions. In June 1999 the Court of Appeals of Indiana ruled that the court lacked subject matter jurisdiction over the case because the action would "excessively entangle the court in religious matters in violation of the First Amendment." The Indiana Supreme Court denied Professor McEnroy's motion to transfer the case.

Status: Professor McEnroy appealed to the U.S. Supreme Court, but the Court denied certiorari in April 2000.

Academic Freedom and Institutional Matters

Crue v. Aiken (University of Illinois-Champaign)

This case involves a challenge by faculty and students at the University of Illinois-Champaign to the administration's policy prohibiting them from communicating with prospective student athletes. The faculty and students oppose the school's use of the Chief Illiniwek mascot, and contend, in part, that the mascot creates a hostile learning environment for Native American students and increases the difficulty of recruiting Native American students to the campus. They wish to contact prospective student athletes to make them aware of this controversy. The district court ruled in favor of the faculty and students, finding that the administration's directive violated the First Amendment. Michael Aiken, former chancellor at the University of Illinois, appealed to the Seventh Circuit. In October 2003 the national AAUP and University of Illinois-Champaign AAUP Chapter filed a joint amicus brief in support of the faculty's right to speak to prospective student athletes about the mascot. The brief, which was written by Professor Matthew Finkin (University of Illinois-Champaign, College of Law), focuses on the protections afforded to professors to speak out as citizens under the university's own regulations and the 1940 Statement of Principles on Academic Freedom and Tenure. In addition, the brief argues that the First Amendment rights of faculty outweigh the administration's interests. A copy of the brief is available (.pdf).

Status: On June 1, 2004 the Seventh Circuit, in a 2-1 decision, ruled that an administrative directive prohibiting faculty and students at the University of Illinois-Champaign from communicating with prospective student athletes violated the First Amendment, because the directive constituted a prior restraint. The majority also concluded that the chancellor's directive was "a broad prohibition on speech on a matter of significant important and public concern," and therefore was protected speech. A copy of the Seventh Circuit decision is available at http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=02-3627.PDF .

This case involved state funding for religious institutions, and the use of academic freedom as a standard to determine whether an institution is so pervasively sectarian as to be ineligible for state funding. In 1990, Columbia Union College applied to the State of Maryland for funding under the state’s Joseph A. Sellinger Program. However, Columbia Union is controlled by the Seventh-day Adventist Church, and the Sellinger program funds may not be used for "sectarian purposes" such as religious worship or religious instruction. In a 1996 ruling, the federal district court determined that Columbia Union was too "pervasively sectarian" to be eligible for Sellinger Program funds. The College appealed this decision, however, and the U.S. Court of Appeals for the Fourth Circuit ordered the lower court to reconsider. On reconsideration, the lower court reversed its earlier ruling, finding that while CUC is "controlled by the Seventh Day Adventist Church," the "primary goal and function of CUC is to provide a secular education even though it has a definite and strong, secondary, goal to teach with a ‘Christian vision.’" In reaching this conclusion, the court misapplied AAUP’s policy on religious institutions’ limitations on academic freedom. The court rightly looked to AAUP's 1940 Statement of Principles on Academic Freedom and Tenure, but incorrectly concluded that the 1940 Statement allowed essentially any restrictions on academic freedom as long as they were communicated to faculty members at the time of hiring. The State of Maryland appealed the lower court’s decision to the Fourth Circuit. While the AAUP has no position on the eligibility of religious institutions for state funding, the legal office submitted an amicus brief (pdf)correcting the court’s interpretation of AAUP policy and reiterating AAUP’s policy that simple notice of religious limitations does not absolve an institution of its obligation to afford academic freedom.

Status: In June 2001 the Fourth Circuit issued a decision, upholding the district court's conclusion that Columbia Union College was entitled to funding because it was not "pervasively sectarian." The opinion did not repeat, address, or rely upon the district court's erroneous citation of AAUP policy.

Academic Freedom and University Publications

Kincaid v. Gibson

In September 1999 a divided three-judge panel of the Sixth Circuit ruled that no First Amendment violation resulted from a college administration's ban on the distribution of a student-created college yearbook based on its cover and contents. The majority ruled that the yearbook was not a public forum, and that the university had a right to approve its content before distributing it. In May 1998 AAUP submitted an amicus brief with the Thomas Jefferson Center for the Protection of Free Expression and the national Kentucky American Civil Liberties Union (ACLU), arguing that the administration's actions violated the students' First Amendment right to publish the yearbook, which was under student editorial control.

Status: In January 2001 the full Sixth Circuit ruled in a 10-3 decision that the University administration violated the First Amendment rights of the student editors. The court found the yearbook to be a limited public forum. The court found "[i]t . . . difficult to conceive of a forum whose nature is more compatible with expression" than the yearbook. The court ruled that "[t]he university's confiscation of the journal of expression was arbitrary and unreasonable," and "ranks with forced government speech as amongst the purest forms of content alteration." In doing so, the court reversed the September 1999 divided three-judge panel of the Sixth Circuit, which had determined that the yearbook was not a public forum, and that the university had a right to approve its content before distributing it. The decision is available at http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0005p.06.

Discrimination

This case raises the legal issue of whether states are immune under the Eleventh Amendment from suits by individuals for monetary damages under the "family leave" provisions of the Family and Medical Leave Act (FMLA), which allow employees to take up to 12 weeks of unpaid leave to care for a sick family member. The district court in this case granted the university's motion for summary judgment, ruling that state employers are immune from FMLA suits. The Ninth Circuit reversed, ruling that Hibbs can sue the state for allegedly denying him leave to care for his sick wife. 273 F.3d 844 (9th Cir. 2001). The court ruled that Congress acted within its power under Section 5 of the Fourteenth Amendment to enforce the Equal Protection Clause, and remanded the case for further proceedings. In so doing, it found that "the FMLA should be treated differently from both the ADA and ADEA because the FMLA is aimed at remedying gender discrimination, which is subject to heightened scrutiny." On June 24, 2002, the U.S. Supreme Court agreed to hear this case. In October 2002 the AAUP joined a brief submitted by the National Women's Law Center and written by O'Melveny & Myers, which argues that Congress validly exercised its authority in enacting the FMLA because "the FMLA remedies gender discrimination by working to eradicate the stereotypes that are both a cause and a result" of unconstitutional gender discrimination. The brief further asserts that Congress' authority extends to abrogate state sovereign immunity from damages, and that while monetary damages under the FMLA are "limited," they remain "absolutely cruciall to the statute's effective enforcement." AAUP participated in this case because the Association is deeply concerned that allowing public entities, such as state universities, to be immune from the FMLA will impair the ability of professors and other academic professionals to protect themselves from gender discrimination in the workplace based on family responsibilities. Statement of Principles on Family Responsibilities and Academic Work (2001). The amicus brief is available at http://www.nwlc.org/pdf/FMLAHibbsAmicusBriefOct2002.pdf. Oral argument before the Supreme Court was heard January 15, 2003.

Status: On May 27, 2003 the U.S. Supreme Court ruled in a 6-3 decision that states are not immune under the Eleventh Amendment from suits by individuals for monetary damages under the "family leave" provisions of the FMLA, which allow employees to take up to 12 weeks of unpaid leave to care for a sick family member. The Court found that Congress had evidence of "a pattern of constitutional violations" by the states in the "participation in, and fostering of, gender-based discrimination in the administration of leave benefits." Accordingly, the Court found that Congress had the authority to enact this law, which it found to be "narrowly targeted at the fault line between work and family." The decision is available at http://www.supremecourtus.gov/opinions/02pdf/01-1368.pdf in .pdf format.

This U.S. Supreme Court case addresses the availability of the disparate impact method of proving discrimination under the federal Age Discrimination in Employment Act (ADEA). In this case, former employees of a utility company challenged a corporate reorganization in which more than 70 percent of the employees terminated were at least 40 years old. The trial court ruled that disparate impact claims may not be brought under the ADEA, and the Eleventh Circuit affirmed. On December 3, 2001 the United States Supreme Court granted certiorari. In January 2002 AAUP joined a brief authored by the American Association of Retired Persons (AARP), which argues that denying the disparate impact method of proving age discrimination will thwart the intent of Congress, insulate conduct Congress has deemed extremely harmful to both individuals and the national economy, and undermine the core civil rights principle that workers should not be judged on characteristics unrelated to their participation in the work force. AAUP participated in this case because AAUP is deeply concerned that the unavailability of the disparate impact method of proof under the federal law would undermine the ability of professors to ensure freedom from age discrimination in the academic workplace.

Status: The Supreme Court heard argument on March 20, 2002. Just twelve days after hearing oral argument, the Supreme Court dismissed the case, stating only that the writ of certiorari had been "improvidently granted."

This U.S. Supreme Court case raised the issue of whether the "sovereign immunity" clause of the Eleventh Amendment prohibits public employees, including faculty members, from suing public institutions, including colleges and universities, under the Americans with Disabilities Act (ADA) for damages. In August 2000 AAUP joined a brief authored by the National Employment Lawyers Association (NELA), which asserted that an extensive record demonstrates public sector employment discrimination against the disabled. AAUP is concerned that holding public entities, such as state universities, immune from the ADA would impair the ability of professors to protect themselves from disability discrimination in the workplace.

Status: In February 2001 the U.S. Supreme Court, in a 5-4 decision, ruled that states, including public universities and colleges, should be immune from lawsuits by individuals seeking monetary damages under the Americans with Disabilities Act (ADA). Chief Justice Rehnquist authored the majority opinion, finding that in enacting the ADA, Congress had failed to show "a history and pattern of unconstitutional employment discrimination by the states against the disabled." A copy of the decision is available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1240.

This federal district court case raised the issue of whether the Equal Pay Act (EPA) validly abrogates states' Eleventh Amendment immunity from suit by individuals for monetary damages in federal court after the Supreme Court decision in Kimel (see below). Dr. Janice Anderson sued the administration alleging a number of claims, including violation of the EPA. She claimed that since 1984 she has been paid less than male faculty of similar rank at her institution despite her equivalent or superior qualifications, record, and workload. The university sought to dismiss the suit, contending that it was immune from the EPA claim under the Eleventh Amendment, and the district court rejected the university's argument. The university appealed and in February 1999 the Second Circuit upheld the district court ruling. Under its Kimel decision, the Supreme Court returned the case to the Second Circuit for reconsideration. The Second Circuit, in turn, remanded the case to federal district court. In June 2000 the AAUP joined a friend-of-the-court brief that was authored by the National Employment Lawyers Association (NELA) and joined by a number of groups, including the National Partnership for Women and Families and the National Women's Law Center. AAUP is concerned that exempting public entities, like state universities, from individual EPA claims for monetary damages will impair the ability of professors to protect themselves from wage discrimination.

Status: In July 2000 the federal district court denied the university's motion for summary judgment.

This U.S. Supreme Court case raised the issue of whether the "sovereign immunity" clause of the Eleventh Amendment prohibits public employees, including faculty members, from suing public institutions, including colleges and universities, under the Age Discrimination in Employment Act (ADEA) for damages. The Supreme Court case consolidated three cases, two of which involved professors. In Kimel v. State of Florida Board of Regents, a chemistry professor, along with 35 other current and former faculty members and librarians from different Florida higher education institutions, claimed that the universities had discriminated against them based on age. In MacPherson v. University of Montevallo, two associate professors alleged that the university discriminated against them and other older faculty members by treating their younger colleagues more favorably in terms of salaries and promotions. In July 1999 AAUP joined a brief authored by the American Association of Retired Persons (AARP), which asserted that states are not immune from such suits for damages. AAUP was concerned that holding public entities, such as state universities, immune from the ADEA would impair the ability of professors to protect themselves from age discrimination in the workplace.

Status: In January 2000 the Court, in a 5-4 decision, ruled that public employees, such as public university professors, may not sue public institutions, including colleges and universities, under the ADEA for damages. In so ruling, the Court noted that its decision "does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. . . . State employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union." This decision is limited to ADEA claims only, and does not affect race and gender discrimination claims. The decision is available at http://supct.law.cornell.edu/supct/html/98-791.ZX.html.

Affirmative Action

In these two closely watched cases, white students brought class-action challenges to affirmative action policies and practices in the admissions processes of the undergraduate and law schools of the University of Michigan. The white students allege that the University discriminated against them by using different standards to admit students of different races. The undergraduate and law school programs both consider race as one among a number of factors in admissions. Given the national importance of these cases, AAUP took the unusual step in April 1999 of signing an amicus brief at the trial level with the American Council on Education and many other higher education organizations, and has joined briefs with these organizations at every level since. The briefs emphasized the educational benefits of racial diversity in higher education among faculty and students, and urged the court to follow the 1978 U.S. Supreme Court Bakke decision.

On June 23, 2003 the U.S. Supreme Court finally issued its much awaited decisions in these two cases. The Court issued its Grutter decision first--a 5-4 decision written by Justice Sandra Day O'Connor. In it the Court endorsed Justice Powell's decision in Regents of the University of California v. Bakke, finding diversity in higher education to be a compelling state interest and upholding the law school admissions program. The Court noted the individuality of the review in the law school, and held that race can be considered as a "plus" factor in admissions if it is considered in the context of a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment."

In contrast, however, in the 6 to 3 Gratz decision, Justice O'Connor joined the opinion's author, Justice William Rehnquist, and four other justices in striking down Michigan's undergraduate admissions program. Importantly, the Gratz decision upheld the concept of affirmative action and diversity as a compelling interest. But it also struck down Michigan's undergraduate admissions process, finding its award of 20 points out of 150 to underrepresented minority applicants solely because of race to be insufficiently "narrowly tailored to achieve the interest in educational diversity that respondents' claim justifies their program."

The decisions also represented an important statement in the academic freedom arena. Not only did the Court uphold educational diversity as a justification for affirmative action, but it recognized the need for deference to educators to determine the best educational environment. The Grutter majority opinion affirmed that "given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Recognizing the Court's "tradition of giving a degree of deference to a university's academic decisions," Justice O'Connor went on to conclude that "good faith on the part of a university is presumed absent a showing to the contrary." Justice O'Connor noted specifically in discussing the facts of the case that a faculty committee crafted the admissions policy the Court was upholding, that it became the official policy upon unanimous adoption by the entire law school faculty, and that the policy was focused on evaluating applicants with an eye toward their "potential to contribute to the learning of those around them." Having recognized the deference that such academic decisions should receive, she especially acknowledged that the question of the educational benefits of diversity involves "complex educational judgments in an area that lies primarily within the expertise of the university."

As it has done since the trial level in these cases, AAUP joined a brief (pdf) in each case with the American Council on Education and many other higher education organizations. The briefs emphasized the educational benefits of racial diversity in higher education among faculty and students, and the necessity of preserving educators' academic freedom in determining criteria for student admissions.

Status: The Supreme Court issued decisions in Gratz and Grutter on June 23, 2003. Copies of the decisions are available:
Gratz-http://a257.g.akamaitech.net/7/257/2422/23jun20031600/
www.supremecourtus.gov/opinions/02pdf/02-516.pdf)
Grutter-http://a257.g.akamaitech.net/7/257/2422/23jun20030800/
www.supremecourtus.gov/opinions/02pdf/02-241.pdf

In yet another case challenging affirmative action in admissions, three rejected white female applicants for admission to the University of Georgia sued the state seeking admission and damages based on violations of the Civil Rights Act.

In July 2000 the United States District Court for the Southern District of Georgia held that the University's admissions policy was unconstitutional. The court found that under the equal protection doctrine diversity does not rise to the level of a compelling government interest because 1) there is no evidence that significant educational benefits are derived from racial and gender diversity, 2) there is no "principled stopping point" for taking race into account, and 3) the argued compelling interest is based on stereotypes because it assumes that race and/or gender are a proxy for viewpoint or experience.

As in the Michigan case, AAUP joined an amicus brief to the Eleventh Circuit with the American Council on Education and many other higher education organizations emphasizing the educational benefits of diversity.

Status: In August 2001 the Eleventh Circuit issued a decision upholding district court decision, although for slightly different reasons. The decision is available at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&no=0014340OPN. The court noted that to pass constitutional muster an affirmative action program must present both a compelling state interest and be narrowly tailored to meet that interest. The court then went on to conclude that it did not need to decide whether student body diversity was a compelling interest sufficient to justify race-based admissions programs in this case, because even assuming such diversity was a compelling interest, it found the UGA policy not sufficiently narrowly tailored to meet that interest. The university decided not to seek review of this decision by the U.S. Supreme Court.

This is another case involving a challenge to affirmative action for minority students in law school admissions. A white female student sued the University of Washington in 1997, claiming that she was denied entry to the University's law school and that less qualified minority applicants were admitted over her. As in the Michigan cases, the plaintiff alleges that the University utilized different standards for white and minority applicants. In November 1998, voters approved a state initiative to ban race-conscious affirmative action in the public sector, and the University announced that it was taking steps to suspend the consideration of race and gender in admissions. A federal district court held that the state initiative made much of the case moot, including class-action claims seeking to declare the old admissions policy unconstitutional. The court also held that the discrimination claim should be decided based on principles enunciated in the Supreme Court's 1978 Bakke decision. The district court's decision was appealed to the Ninth Circuit regarding the applicability of the Bakke principles on diversity. As in the Michigan and Georgia cases, AAUP joined an amicus brief with the American Council on Education and many other higher education organizations emphasizing the educational benefits of diversity.

In December 2000 the Ninth Circuit upheld the district court's decision, concluding that the principles set out in the Supreme Court's Bakke decision govern. Applying Bakke, the Ninth Circuit held that "the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict-scrutiny of race-conscious measures." The Washington state law banning race-conscious affirmative action in public school admissions still remains in effect, however. Thus the University of Washington is still barred by state law from considering race in its admissions process. The opinion is available at http://laws.lp.findlaw.com/9th/9935209.html. In May 2001 the Supreme Court denied certiorari, leaving this Ninth Circuit opinion standing.

After the Supreme Court's denial of certiorari, the case went back down to the district court for a decision on the merits, in accordance with the Ninth Circuit's decision that the law of Bakke would govern. On June 5th, 2002, the United States District Court of the Western Division of Washington issued a decision concluding that the Law School's admissions policies during the years in question (1994,1995,1996) were consistent with Bakke, and therefore constitutional. The district court's decision (pdf) is available. The plaintiffs appealed the case to the 9th Circuit once again, but that court postponed decision on the case until after the Supreme Court had ruled on the Michigan cases (above).

Status: When the court finally turned to the case again, issuing a decision on December 20, 2004, all that was left to decide was "whether the Law School's admissions program was narrowly tailored to meet the compelling interest of educational diversity during the three years in which the plaintiffs applied—1994, 1995 and 1996—in order to determine whether the plaintiffs might be entitled to damages." The Ninth Circuit's December ruling concluded that "the Law School's narrowly tailored use of race and ethnicity in admissions decisions during 1994-96 furthered its compelling interest in obtaining the educational benefits that flow from a diverse student body, [and thus that] [t]he district court was … correct in entering judgment against the plaintiffs' damages claims." This conclusion, that the Law School's admissions program was sufficiently narrowly tailored, allowed the court not to reach the plaintiffs' other arguments. Read the decision (pdf).