Legal Issues

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“What business are we in?” Christie Hefner—president, chair, and CEO of Playboy Enterprises from 1988 through 2009—challenged attendees at the 2012 annual meeting of the Association of University Technology Managers (AUTM), being held just outside of Disneyland, to ask themselves this deceptively simple question. While Playboy’s business no doubt would make Mickey Mouse blush, Hefner’s question to those on the front lines of the university patenting and licensing community bears studied reflection by a much wider audience.

AAUP Amicus Brief Supports Collective Bargaining Rights

In June, the AAUP submitted a friend-of-the-court brief to the National Labor Relations Board on the question of whether faculty members at private colleges and universities who are seeking to be represented by a union are employees covered by the National Labor Relations Act (NLRA) or excluded managers. In the case Point Park University v. Newspaper Guild of Pittsburgh and Communications Workers of America, faculty members petitioned for an election and voted in favor of representation by the Communications Workers of America, Local 38061.

AAUP Welcomes New Senior Counsel

Aaron Nisenson joined the AAUP as senior staff counsel in January 2013. He brings more than two decades of experience in nonprofit and labor and employment representation to the AAUP’s legal department, including extensive experience representing unions and individuals before the National Labor Relations Board, before state and local labor relations authorities, and in collective bargaining negotiations and arbitrations.

The Red Scare in the New York City Schools

Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge by Marjorie Heins. New York: New York University Press, 2013.

Bequest Supports Legal Defense Fund

The AAUP Foundation’s Legal Defense Fund has been greatly bolstered by a $40,000 charitable bequest from the Moses and Dorothy Passer Trust. Moses Passer was an AAUP member for forty-five years (1949–94). He earned a PhD in organic chemistry from Cornell University in 1948 and conducted postdoctoral research in polymer chemistry at the University of Illinois before spending most of his academic career at the University of Minnesota–Duluth, where he was an assistant professor, associate professor, and eventually full professor of chemistry.

Appeals Court Expands Protections for Academic Speech

The Ninth Circuit Court of Appeals recently issued an important decision that vigorously affirms First Amendment protections for academic speech by faculty members. Demers v. Austin arose when Washington State University disciplined professor David Demers after he distributed a pamphlet that made proposals to change the direction and focus of the Murrow School of Communications. Demers sued the university, alleging that the university’s actions violated his First Amendment rights. The trial court applied the Supreme Court’s analysis in the 2006 Garcetti v.

Navigating Troubled Waters at the NLRB

Since the US Supreme Court’s infamous NLRB v. Yeshiva University decision in 1980, faculty members at private colleges and universities have confronted major roadblocks to unionization. Yeshiva labels most tenure-track faculty as “managerial,” excluding them from the right to unionize under the National Labor Relations Act (NLRA). Now, more than thirty years later, the National Labor Relations Board (NLRB) has signaled its interest in opening greater possibilities for faculty unionization.

Cuccinelli v. Rector & Visitors of the University of Virginia, 283 Va. 420 (2010)

In a 2012 decision the Virginia Supreme Court rejected attempts by then Virginia Attorney General Ken Cuccinelli to compel disclosure of university research records.  Cuccinelli who publicly opposes the theory of global warming, used his position to formally request emails and other documents relating to former faculty member and climatologist Michael Mann from the University of Virginia (UVA) arguing that he had authority to subpoena these records pursuant to the Virginia Fraud Against Taxpayers Act (FATA).  The Supreme Court of Virginia held that state universities, as agencies of the Commonwealth, do not constitute a “person” under the FATA and therefore Cuccinelli had no authority to require release of the records and his appeal was rendered moot. (In another related case, the Virginia Supreme Court rejected a request for these records under the Virginia Freedom of Information Act.)

The American Tradition Institute v. Rector & Visitors of the University of Virginia & Michael Mann, 2014 Va. LEXIS 54, ---- Va. ----- (Va. April 17, 2014)

In this case the Virginia Supreme Court unanimously ruled that a professor’s climate research records were exempt from disclosure as academic research records, as AAUP argued in an amicus brief submitted to the Court.  The Court explained that the exclusion of University research records from disclosure was intended to prevent “harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.” While the decision was limited to a Virginia statute, it provided a strong rationale for the defense of academic records from disclosure.

Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014)

In this important decision, the Ninth Circuit Court of Appeals reinforced the First Amendment protections for academic speech by faculty members.  Adopting an approach advanced in AAUP’s amicus brief, the court emphasized the seminal importance of academic speech. Accordingly, the court concluded that the Garcetti analysis did not apply to "speech related to scholarship or teaching,” and therefore the First Amendment could protect this speech even when undertaken "pursuant to the official duties" of a teacher and professor.

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