The AUP participates in amicus briefs in numerous cases that affect women in higher education. Some highlights include:
Gratz v. Bollinger; Grutter v. Bollinger: 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. The brief 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 December 13, 2000, Judge Duggan of the U.S. District Court for the Eastern District of Michigan issued an opinion in Gratz. Judge Duggan’s opinion found diversity in higher education to be a compelling interest sufficient to survive strict scrutiny, and upheld the constitutionality of Michigan’s current admissions program.
On March 27, 2001, Judge Friedman, also of the U.S. District Court for the Eastern District of Michigan, issued an opinion Grutter. However, Judge Friedman’s opinion concluded that using race as one "plus" factor among many considered was not constitutional, and that "the law school’s justification for using race--to assemble a racially diverse student population--is not a compelling state interest."
In May of 2001 the AAUP signed onto amicus briefs before the United States Court of Appeals for the Sixth Circuit in both Gratz and Grutter, and on May 14th, 2002, the Sixth Circuit issued a decision in Grutter. The decision is available. (Interestingly, no opinion was issued in Gratz; although the cases were argued together, the court indicated that it would address Gratz in a separate opinion, but has not yet done so.)
The court, in a lengthy and contentious 5-4 decision, found diversity in higher education to be a compelling interest sufficient to survive strict scrutiny, and found Michigan's current law school admissions program, which treats race as one "plus" factor among many, to be constitutional. The court's decision overturned that of Judge Friedman in the district court.
In upholding Justice Powell's decision in Bakke, and its endorsement of diversity as a compelling state interest, the Sixth Circuit conducted a detailed analysis of the Powell opinion and of the relative weight of the different opinions in Bakke. Referring to Marks v. United States, 430 U.S. 188, 193 (1977) and its requirement that "when a fragmented Court decides a case . . . the holding of the Court may be viewed as that position taken by those Members who concurred in the judgements on the narrowest grounds," the court read the narrow holding of Bakke to include Justice Powell's recognition of a diverse student body as "essential to the quality of higher education" and as a compelling state interest.
In order to survive constitutional review (and to not violate Title VI of the Civil Rights Act of 1964), the Law School's policy must not only serve a compelling state interest, but must be narrowly tailored to achieve that interest. The Sixth Circuit concluded that the Law School's treatment of race as a "plus" factor, and its attempts to enroll a "critical mass" of underrepresented students, did not constitute a quota system but rather was an appropriate, narrowly tailored means of achieving the racial diversity necessary to a broad education.
Most importantly for AAUP, the court's "narrow tailoring" analysis paid particular deference to the "educational judgment and expertise of the Law School's faculty and admissions personnel." The court noted that it was ill-equipped to ascertain what race neutral alternatives will allow an institution to assemble a highly qualified and richly diverse academic class, and cited approvingly the U.S. Supreme Court's conclusion in Regents of the University of Michigan v. Ewing that a federal court is ill-suited "to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public education institutions-decisions that require an expert evaluation of cumulative information and are not readily adapted to the procedural tools of judicial or administrative decisionmaking."
Status: On June 23, 2003, the Supreme Court issued its decisions in Gratz and Grutter. In Grutter, the Court upheld the law school's admissions program, ruling 5-4 that diversity in higher education is a compelling state interest. The Court pointed to the individualized nature of the law school admissions review 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 education environment." Importantly, the Court also recognized 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." The majority opinion further acknowledged that the issue of the educational benefits of diversity implicates "complex educational judgments in an area that lies primarily within the expertise of the university."
In Gratz, by contrast, the Court held in a 6-3 ruling that the undergraduate admissions process was unconstitutional, concluding that the program's award of points solely on the basis of race was insufficiently "narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program." The Court did, however, uphold the concepts of affirmative action and diversity as compelling state interests.
Discrimination and Family Leave
Nevada Department of Human Resources v. Hibbs: This case raised 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 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 argued 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 asserted that Congress' authority extends to abrogate state sovereign immunity from damages, and that while monetary damages under the FMLA are "limited," they remain "absolutely crucial 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 in .pdf format. Oral argument before the Supreme Court was heard January 15, 2003. 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. 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."
Discrimination in Retirement Plans
Spirt v. TIAA-CREF, 691 F.2d 1054 (2d Cir. 1982), vacated and remanded, 463 U.S. 1223 (1983), on remand, 735 F.2d 23 (2d Cir. 1984), cert. denied, 469 U.S. 881 (1984). In 1981 AAUP intervened as a plaintiff in this landmark Title VII case to challenge TIAA-CREF's use of sex-based actuarial tables in computing pension benefits. In the first hearing by the Second Circuit, the court held that both TIAA's and CREF's use of sex-based tables to determine retirement benefits violated Title VII. The Supreme Court vacated and remanded that ruling in light of Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983), which held that "the use of sex-segregated retirement benefits violates Title VII whether or not the tables are accurate predictions of the longevity of women as a class." In its second hearing, the Second Circuit affirmed its earlier ruling, ordering TIAA-CREF to use unisex tables to calculate benefits for all persons retiring after May 1, 1980 (a date soon after the trial court's original decision).
Jackson v. Birmingham Board of Education: 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. The amicus brief is available in .pdf format.
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.
Tenure as a Remedy for Gender Discrimination
Fisher v. Vassar College, 852 F. Supp. 1193 (S.D.N.Y. 1994), rev'd, 6 F.3d 379 (2d Cir. 1995), aff'd, 114 F.3d 1332 (2d Cir. 1997) (en banc), cert. denied, 118 S. Ct. 851 (1998). Professor Cynthia Fisher, a married biologist, established in trial court that Vassar College discriminated against her on the basis of sex in denying her tenure. As a remedy, the court awarded "tenure" to Dr. Fisher for a period of two years, subject to evaluation for retention and promotion. AAUP submitted an amicus brief at the appellate level that addressed the remedial order, arguing that victims of discrimination need to be completely restored, that tenure is not limited in duration, and that other courts had ordered unconditional tenure as a remedy for discrimination. In the end, the appellate court held that the college had not discriminated against Dr. Fisher, thereby failing to reach the issue of time-limited tenure as a remedy. That appellate court ruling was narrowly upheld by an en banc appeals panel, a decision which the Supreme Court declined to review.
Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir. 1989). An assistant professor of English was denied tenure despite receiving unanimously favorable votes from her departmental colleagues and similar support at administrative levels. The professor claimed that she had been discriminated against because of her sex, alleging that the university president and dean had made derogatory remarks about her and that she had been held to a stricter standard than her male peers. The lower court upheld her claim, finding that the university president's sexist remarks about the English Department established gender bias. At the appellate level, AAUP filed an amicus brief endorsing the award of tenure as a remedy and, for the first time, a court approved an award of tenure as a remedy for discrimination.
Kunda v. Muhlenberg College, 621 F.2d 532 (2d Cir. 1980). This case also involved tenure as a remedy for discrimination. Connie Kunda, a physical education teacher, sued the college after it denied her promotion and tenure. The trial court ruled that the college had intentionally discriminated against her on the basis of sex, awarding her reinstatement to her position, back pay, promotion to the rank of assistant professor, and the opportunity to complete the requirement for a master's degree within two full school years from the date of the court order when, if completed, she would be granted tenure. The appellate court agreed that Kunda had been discriminated against, affirming the trial court's finding that the college's reason for denial-- lack of the terminal degree--was a pretext for discrimination. The appellate court also affirmed the trial court's finding that the college's reason for denial of tenure--lack of a terminal degree-- was not pretextual but that she had been subjected to intentional disparate treatment because similarly situated males in her department had received counseling on the need for an advanced degree while she had not. The court's remedy: promotion and conditional tenure, since she would have had two more years to obtain the degree if she had not been the subject of discriminatory counseling.
Equal Access to Educational Opportunities
United States v. Virginia, 852 F. Supp. 471, aff'd, 44 F.3d 1229 (4th Cir. 1995), rev'd, 518 U.S. 515 (1996). In this case, the federal government successfully sued the public institution Virginia Military Institute, challenging the constitutionality of the Institute's exclusion of female students. AAUP co-signed an amicus brief on behalf of three organizations and 25 scholars, including several researchers whose work was cited in the lower court in discussing alleged sex-based differences and the purported benefits of single-sex education for men. The brief argued that "[w]omen's constitutional right to equal access to state educational opportunities should rest, not on problematic theories about purported sex-based biological and psychological differences, but rather on the enduring principles expressed in the Equal Protection Clause."
Fair Pay on Campus
Anderson v. State University of New York at New Paltz, 169 F.3d 117 (2nd Cir. 1999), remanded by 120 S. Ct. 929 (U.S. 2000). This federal district court case raises 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 United States v. Kimel. Dr. Janice Anderson sued the administration alleging a number of claims, including violation of the EPA. She claims 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. We wait a federal district court decision.
Status: In July 2000, the district court issued a carefully considered decision in which it again denied the University's motion for summary judgment. The court held that Congress had the power under the Equal Protection Clause of the Fourteenth Amendment to pass the EPA and that the EPA was a proportionate, remedial response to the "evil" of gender-based wage discrimination. The court distinguished Kimel on the grounds that Kimel involved age classifications, which need only serve a rational state interest, while gender-based distinctions are strongly presumed to be suspect, justifying a robust statutory framework to combat such discrimination. The court concluded that the state's Eleventh Amendment immunity had been validly abrogated.
Smith v. Virginia Commonwealth University, 856 F. Supp. 1088 (E.D. Va. 1994), rev'd, 62 F.3d 659 (4th Cir. 1995), vacated, 1995 U.S. App. LEXIS 28831 ( 4th Cir. Oct. 13, 1995) (en banc), rev'd 84 F. 3d 672 (4th Cir. 1996). Following a statistical study that demonstrated a disparity of $1300 between the salaries of men and women professors that could not be explained by permissible factors, Virginia Commonwealth University (VCU) established a special fund for female faculty to apply for increases. A group of male faculty members whose regular increases remained undisturbed challenged as discriminatory this one-time pay adjustment made to 170 female faculty members. The lower court found that the university's program did not unnecessarily trammel the rights of male faculty members. AAUP filed a friend-of-the-court brief to the Fourth Circuit, arguing that a one-time salary adjustment program to correct a statistically identified imbalance favoring male faculty members was consistent with Title VII and the judicial standards for such affirmative action programs.
nfortunately, a three-judge appellate court sent the case back to the lower court for trial, unwilling to accept the adequacy of the university's statistical study without further evidence. Later the full Fourth Circuit granted en banc review, and it ruled that a trial was necessary, although several different rationales were offered for the outcome.
Penk v. Oregon State System of Higher Education, 816 F.2d 458 (9th Cir.), cert denied, 484 U.S. 853 (1987). In this case, 22 female faculty alleged discrimination systemwide in terms of salary, promotion, and tenure practices. Statistical analysis indicated that female faculty, on the whole, were paid less than male faculty and tended to be at lower ranks. The appellate court affirmed the trial court's finding that the postsecondary system had provided legitimate nondiscriminatory reasons for the statistical differences, such as that many women faculty were less senior than male faculty. AAUP filed an amicus brief in support of an unsuccessful certiorari application to the United States Supreme Court, contending that the Ninth Circuit erred in requiring female faculty to include in their statistical analysis factors, whether measurable or not, the quality of teaching, research and service, because that requirement conflicted with an earlier Supreme Court ruling that statistical studies may serve to prove discrimination by a preponderance of the evidence without accounting for all measurable factors.