AAUP Files Briefs on Faculty Rights and Protections

By Rachel B. Levinson

The AAUP legal office has been busy since the beginning of the year, submitting six amicus briefs to federal appeals courts and the U.S. Supreme Court between January and April.

In Otero-Burgos v. Inter-American University, a federal trial court in Puerto Rico held that back pay is the only remedy available to a tenured faculty member whose appointment is terminated. The Association’s amicus brief to the First Circuit Court of Appeals, drafted with the assistance of the law firm Covington and Burling, argues that upholding that decision would eviscerate the meaning of tenure.

The Association also joined other interested organizations in filing several amicus briefs to the U.S. Supreme Court; the briefs focus on employment protections for public employees, including faculty members at public institutions. In Engquist v. Oregon Department of Agriculture, the brief contended that public employees who are fired for vindictive or arbitrary reasons should be able to sue their employers even when the termination is not based on a specific prohibited category such as race, sex, or national origin. In Meacham v. Knolls Atomic Power Laboratory, the brief urged the Court to hold that when an employer discriminates on the basis of age but defends the decision on the basis of “reasonable factors other than age,” the burden must be on the employer to demonstrate the existence of those factors, rather than on the employee to prove their absence. And in Crawford v. Metropolitan Government of Nashville, the brief asserted that employees who participate in their employer’s internal sexual harassment investigation should be protected from being fired in retaliation for their cooperation.

Finally, in Doe v. Mukasey, the Association argued in a joint brief to the Second Circuit Court of Appeals that the federal government’s use of national security letters to obtain information on users of e-mail at bookstores and libraries, including academic libraries, is unconstitutional, particularly where the government can prevent recipients of the security letters from disclosing the existence or topics of the letters.

See the Legal Watch column in this issue for an account of the sixth case, Hong v. Grant and additional information on the six cases and copies of the AAUP’s amicus briefs.

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