AAUP Amicus Briefs

By Kelly Hand

The AAUP legal program has been active in submitting amicus briefs in legal cases pertinent to higher education.

In December 2017 the AAUP submitted an amicus brief to the US Court of Appeals for the DC Circuit in University of Southern California v. National Labor Relations Board. The brief urged the Court to uphold the board’s determination that non-tenure-track faculty at USC are not managerial employees and are therefore eligible to unionize under the National Labor Relations Act. The case arose when the Service Employees International Union filed a petition to represent non-tenure-track full- and part-time faculty in two colleges within USC. USC objected to the petition, arguing that the faculty were managers according to the precedent of the US Supreme Court’s 1980 ruling in NLRB v. Yeshiva University, but the board concluded that there was insufficient proof of a managerial role for non-tenure-track faculty at USC. The brief supports the legal framework established by the National Labor Relations Board in its 2014 Pacific Lutheran University decision, which expanded the organizing rights of private-sector faculty members.

A January amicus brief submitted jointly with the National Education Association to the US Supreme Court in Janus v. AFSCME, Council 31 argues that the payment of agency fees by nonmembers in public-sector unions is constitutional. At issue in the case is whether nonmembers of unions, who share in the wages, benefits, and protections that have been negotiated into a collectively bargained contract, may be required to pay their fair share for the cost of those negotiations. The case, supported by the National Right to Work Committee, asks the Court to find that such fair-share fees violate the First Amendment. The brief explains that such an unprecedented interpretation of the First Amendment would conflict with the Court’s long-established deference to state decisions about their public workforces.

In February the AAUP joined with other groups, including the California Community College system, in filing an amicus brief with the US Court of Appeals for the Ninth Circuit in City and County of San Francisco v. Trump supporting a permanent injunction against a Trump administration executive order that sought to strip federal funding from “sanctuary jurisdictions.” The AAUP’s interest in the case stems from the potential impact of the executive order on colleges and universities, which carry out their public missions in part by developing diverse student bodies, regardless of immigration status. The threat of withholding federal funding to coerce jurisdictions to participate in federal immigration enforcement sets a dangerous precedent with serious implications for higher education institutions.

The AAUP submitted an amicus brief in March with the Wisconsin Supreme Court in support of John McAdams, a professor at Marquette University who was suspended after writing a blog post that criticized the university, other university faculty, and the actions of a graduate student instructor. McAdams’s subsequent refusal to write—as a condition of reinstatement—a statement of apology and admission of wrongdoing resulted in his de facto termination without due process or opportunity to contest the administration’s action. McAdams seeks in his case to overturn the trial court’s decision to deny his motion for summary judgment. The AAUP amicus brief explains that its policy documents and standards guaranteeing faculty rights of academic freedom and due process must protect faculty from discipline when they express controversial views. (See the Legal Watch column in this issue for further discussion of the AAUP’s brief.)

To read the amicus briefs and more detailed summaries of the cases, visit https://www.aaup.org/our-work/legal-program/amicus-briefs.

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