AAUP Amicus Briefs

For information on how to submit a request for amicus assistance, please read the AAUP Amicus Request Application Process (PDF).

In accord with the AAUP’s principles and litigation priorities, our legal office files amicus briefs in cases involving academic freedom, tenure, discrimination, affirmative action, sexual harassment, and intellectual property issues, among other things. In rare circumstances the AAUP participates as a party in cases involving academic freedom, First Amendment rights, and national security.

The decision to file a brief is made by the president, general counsel, and general secretary; the AAUP’s Litigation Committee, composed of legal experts in a variety of areas, provides additional guidance. The AAUP generally files amicus briefs only in appellate or supreme courts at the state or federal level.

The AAUP legal staff sometimes takes primary responsibility for drafting and submitting an amicus brief; other times, the AAUP signs onto a “coalition” brief that has been drafted primarily by another organization but implicates an important interest of the AAUP.

Recent Amicus Briefs

On March 29, 2016, the Supreme Court issued a decision rejecting attempts by anti-union forces to render agency fee unconstitutional in the public sector. The AAUP filed with the American Federation of Teachers an amicus brief arguing that the payment of agency fees by non-members in collective bargaining unions to support union representation is constitutional. Ultimately the Court upheld an appellate court decision that found agency fee constitutional without addressing the substantive arguments in the case. Rather the Supreme Court decision stated in full “The judgment is affirmed by an equally divided Court.” Thus, the law remains as it has for over forty years. However, since the Court was equally divided, it could revisit the issue, in this or another case, once a new justice is appointed to the Court.

The AAUP filed an amicus brief with the National Labor Relations Board arguing that graduate assistants at private sector institutions should be considered employees with collective bargaining rights. The brief responded to an invitation from the NLRB to file amicus briefs in addressing whether the Board should modify or overrule its 2004 decision in Brown University, which had found that graduate assistants were not employees and therefore did not have statutory rights to unionize.  342 NLRB 483 (2004). In the amicus brief the AAUP argued that the Board should overrule Brown, explaining that graduate assistants are employees with collective bargaining rights, and that collective bargaining promotes academic freedom and does not harm faculty-student mentoring relationships.  

In a case in which the AAUP filed an amicus brief, the Arizona Court of Appeals remanded a dispute involving a request for climate scientists’ research records so that the trial court could weigh de novo the University’s “contention that disclosure of the records would be detrimental to the best interests of the state against the presumption in favor of disclosure.”  The case arose from a public records request for extensive material from two climate scientists submitted by a legal foundation seeking to use records requests in an attempt to “put false science on trial.” The AAUP filed an amicus brief with the Arizona Court of Appeals, and earlier with the trial court, arguing that academic freedom to conduct research is essential to a vital university system, and to the common good, and warranted protecting certain research records from disclosure.

Academic Freedom and Employee Speech

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.

Professor Capeheart sued Northeastern Illinois University after the provost disregarded a faculty vote electing Capeheart chair of the Justice Studies Department.

Tenured Professor Michael Adams sued the University of North Carolina-Wilmington after he was denied a promotion, alleging this denial was retaliation for his political speech and his speech criticizing the school.  The AAUP, the Thomas Jefferson Center for the Protection of Free Expression, and the Foundation for Individual Rights in Education filed an amicus brief in the Fourth Circuit supporting Professor Adams.

Academic Freedom and Institutional Matters

Plaintiffs sued, alleging a violation of their First Amendment rights when college administrators banned the distribution of a student-created college yearbook based on its cover and contents.

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.

Professor Junger, who teaches a course called  "Computers and the Law” at Case Western Reserve University,  sued the U.S. Department of Commerce, challenging regulations that prohibit him from posting to his website various encryption programs that he wrote to show his students how computers work.

Academic Freedom and National Security

The AAUP joined several other organizations in filing suit against the Secretary of the Department of Homeland Security and Secretary of State, challenging the American consul in South Africa's denial of Professor Habib’s application for a non-immigrant visa on the ground he “engaged in terrorism” and thus was ineligible for a visa.

The plaintiffs, an internet service provider and others challenged the constitutionality of National Security Letters and their accompanying “gag orders.”  

Following 9/11, the  National Security Agency (NSA) undisputedly eavesdropped without warrants international telephone and e-mail communications in which at least one of the parties was “reasonably” suspected of al Qaeda ties.  Prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by phone and e-mail with people in the Middle East filed suit, argued that the NSA wiretapping program violates their First Amendment rights by impairing their ability to obtain information from sources abroad, conduct scholarship, and engage in advocacy. 

Academic Freedom and Research

In a case in which the AAUP filed an amicus brief, the Arizona Court of Appeals remanded a dispute involving a request for climate scientists’ research records so that the trial court could weigh de novo the University’s “contention that disclosure of the records would be detrimental to the best interests of the state against the presumption in favor of disclosure.”  The case arose from a public records request for extensive material from two climate scientists submitted by a legal foundation seeking to use records requests in an attempt to “put false science on trial.” The AAUP filed an amicus brief with the Arizona Court of Appeals, and earlier with the trial court, arguing that academic freedom to conduct research is essential to a vital university system, and to the common good, and warranted protecting certain research records from disclosure.

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.

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.)

Academic Freedom and Teaching

Asking the Appellate Division of the Superior Court of New Jersey court to protect the records of the law clinic, the AAUP’s joint amicus brief argued that requiring the clinic’s records to be released publicly would impinge on the academic freedom rights of Rutgers faculty and students as well as the First Amendment rights of citizens to access and use law clinics.  

Professor Rubenfeld and members of Yale Law School faculty sued the Department of Defense on First Amendment and Fifth Amendment grounds; they argued that the Department was wrong in applying the Solomon Amendment against the university because of the law school's nondiscrimination policy. 

An association of law schools and law faculties alleged that the Solomon Amendment, which tied federal funding for institutions of higher education with giving military recruiters access equal to that provided to other recruiters, infringed its members' First Amendment freedoms of speech and association. The Solomon Amendment placed schools in the unwanted position of either violating their own policies regarding discrimination on the basis of sexual orientation, or risking millions of dollars in federal funding. 

Affirmative Action

The AAUP joined an amicus brief filed on October 30, 2015 in the Supreme Court in Fisher v. University of Texas at Austin, 135 S. Ct. 2888 (2015)(Fisher II) arguing that consideration of race in the admissions process is appropriateThis is the second time the Supreme Court has considered Fisher’s challenge to the use of race as a consideration in the University of Texas’s holistic admissions process and the fourth time the AAUP has joined an amicus brief in the case. This amicus brief advances the AAUP’s longstanding view that diversity among the student body is essential not only to students’ learning, experiences, and opportunities, but to the entire academic enterprise.

In this case the U.S. Supreme Court overturned a lower court ruling that had found unconstitutional provisions of an amendment to the Michigan Constitution banning affirmative action affecting Michigan's public higher education institutions.  The Court noted that the question was ". . . not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions." The Court held that because there was no specific injury, voters had the right to determine whether race-based preferences should be permitted by state entities and therefore the amendment banning affirmative action was constitutional. The Court made clear, however, that this ruling does not change the principle outlined in Fisher v. University of Texas that, "the consideration of race in admissions is permissible, provided that certain conditions are met."

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.

Discrimination and Sexual Harassment

In this case the Supreme Court limited the standard of proof in retaliation cases under Title VII (the nation’s primary anti-discrimination law) to the narrower “but for” causation standard.  While this ruling benefits employers and was contrary to the position argued by the AAUP in an amicus brief it is a relatively modest change in the burden of proof in such cases.

The petitioners, unsuccessful applicants for firefighter positions, filed suit alleging that the City of Chicago’s practice of selecting only applicants who scored 89 or above on a written examination had a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act of 1964. 

Petitioner Vicky Crawford reported that her manager made sexually explicit remarks and gestures towards her; she was later terminated. At issue was whether Title VII protections against retaliation extended to an employee who spoke out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.

Faculty Collective Bargaining Rights

On March 29, 2016, the Supreme Court issued a decision rejecting attempts by anti-union forces to render agency fee unconstitutional in the public sector. The AAUP filed with the American Federation of Teachers an amicus brief arguing that the payment of agency fees by non-members in collective bargaining unions to support union representation is constitutional. Ultimately the Court upheld an appellate court decision that found agency fee constitutional without addressing the substantive arguments in the case. Rather the Supreme Court decision stated in full “The judgment is affirmed by an equally divided Court.” Thus, the law remains as it has for over forty years. However, since the Court was equally divided, it could revisit the issue, in this or another case, once a new justice is appointed to the Court.

The AAUP filed an amicus brief with the National Labor Relations Board arguing that graduate assistants at private sector institutions should be considered employees with collective bargaining rights. The brief responded to an invitation from the NLRB to file amicus briefs in addressing whether the Board should modify or overrule its 2004 decision in Brown University, which had found that graduate assistants were not employees and therefore did not have statutory rights to unionize.  342 NLRB 483 (2004). In the amicus brief the AAUP argued that the Board should overrule Brown, explaining that graduate assistants are employees with collective bargaining rights, and that collective bargaining promotes academic freedom and does not harm faculty-student mentoring relationships.  

In a highly publicized case in which the AAUP filed an amicus brief, the National Labor Relations Board declined to assert jurisdiction over the Northwestern University football players’ petition seeking union representation rendering the players unable to unionize under the auspices of the NLRB. The Board, however, explicitly limited its decision to the unusual circumstances of the case, avoiding broader questions involving the unionization of graduate student assistants and others. 

Intellectual Property

On October 17, 2014, The Eleventh Circuit Court of Appeals expounded upon the test used to determine the “fair use” exception to copyright protection. The district court initially held that faculty members’ use of certain electronic course reserves and electronic course sites to make excerpts from academic books available to students at Georgia State University (GSU) was “fair use.” AAUP submitted an amicus brief  to the Circuit Court urging it to affirm the district court’s ruling and to clarify that a “transformative use” analysis may also be used to determine “fair use.” The Circuit Court reversed the district court’s decision, agreeing with much of the district court’s fair use analysis, but not with how it applied that analysis: “The District Court did err by giving each of the four fair use factors [purpose of the new use, the nature of the original work, the amount of the work being used, and the impact on the new use on the market for the original work] equal weight, and by treating the four factors mechanistically. The District Court should have undertaken a holistic analysis which carefully balanced the four factors.”

Petitioner Stanford University sued respondent Roche Molecular Systems, Inc. The research company responded by arguing it co-owned a patent based on a professor inventor's assignment, so the university lacked standing. This complex case has evolved into a broader battle over the patent rights of faculty members to their inventive work. 

This case concerns Theresa Cameron, a tenured professor at Arizona State University. She was terminated after she was accused of and admitted to plagiarizing syllabi of other faculty in her own syllabi. Dr. Cameron filed suit, asking that she undergo a post-tenure review rather than termination. The AAUP filed an amicus brief in support of her petition for review, arguing that the punishment of termination was grossly disproportionate to the actions that Dr. Cameron took.

Tenure

The AAUP joined in an amicus brief in the California Court of Appeal  contesting a ruling by a California state court judge that found that California statutes providing tenure protections to K–12 teachers violated the equal protection provisions of the California constitution. The case arose from a challenge, funded by anti-union organizations, to five California statutes that provide primary and secondary school teachers a two-year probationary period, stipulate procedural protections for non-probationary teachers facing termination, and emphasize teacher seniority in reductions of force. The trial court judge held that the statutes unconstitutionally impact students’ constitutional right to equality of education and disproportionately burden poor and minority students. The amicus brief contesting this decision argued that the challenged statutes help protect teachers from retaliation, help keep good teachers in the classroom by promoting teacher longevity and discouraging teacher turnover, and allow teachers to act in students’ interests in presenting curricular material and advocating for students within the school system.

The Kentucky Supreme Court recently issued two decisions strongly affirming the rights of tenured faculty members at religious institutions and echoing arguments made by AAUP in an amicus brief filed with the court.  In two companion cases the Kentucky Supreme Court ruled that religious institutions are generally bound by tenure contracts, including faculty handbooks, and that faculty members may sue if these contracts are breached, even in some instances in which the faculty member is a minister.

Tenured law professor Lynn Branham was terminated from Thomas M. Cooley School of Law (“Cooley”) and subsequently sued the law school in federal court on claims of violations of the Americans with Disabilities Act and Michigan Persons with Disabilities Civil Rights Act, intentional infliction of emotional distress, and breach of contract.  

AAUP filed a motion and amicus brief in support of Branham’s petition which was authored by AAUP Committee A member Matt Finkin.