Briefs Support AAUP Principles

By Kelly Hand

Through the AAUP’s legal program, staff attorneys collaborate with the AAUP’s general counsel, Risa Lieberwitz, and other legal experts to shape the law in support of the Association’s principles. The AAUP’s legal team submitted or joined in amicus briefs in three cases last fall.

The AAUP filed an amicus brief on October 26 with the Arizona Court of Appeals in the case of Energy & Environment Legal Institute v. Arizona Board of Regents. Energy & Environment Legal Institute, formerly the American Tradition Institute, is a “free-market” legal foundation using public records requests in a campaign against climate science. In this case, which is similar to a previous case involving researchers at the University of Virginia, Energy & Environment has requested that two University of Arizona faculty members, climate researchers Malcolm Hughes and Jonathan Overpeck, turn over their e-mail correspondence with eight other researchers. Energy & Environment, whose counsel has stated that the purpose of the suit is to “put false science on trial,” vows to “keep peppering universities around the country with similar requests under state open records laws.” The AAUP brief supports the university and the scientists, arguing that academic freedom to conduct research is essential to a vital university system and to the common good and that it warrants protecting internal research materials from disclosure.

The AAUP joined in an amicus brief filed on October 30 by the American Council on Education and thirty-seven higher education associations with the US Supreme Court in the case of Fisher v. University of Texas at Austin. This case, initiated by a white student rejected for admission to the University of Texas at Austin, addresses the validity of race and ethnicity as a factor in admissions. The student, Abigail Noel Fisher, claims that the university’s consideration of race in selecting applicants violated her Fourteenth Amendment rights to equal protection. This is the second time the Supreme Court has considered Fisher’s challenge and the fourth time the AAUP has joined an amicus brief in the case. The current brief maintains that colleges and universities have a compelling interest in diversity that justifies a “narrowly tailored” consideration of race and ethnicity in the holistic review of applicants. With its long history of leadership in affirmative action debates, the AAUP reaffirmed its commitment to the value of diversity in education by signing on to this brief.

The AAUP joined with the American Federation of Teachers in an amicus brief filed on November 13 with the US Supreme Court in the case of Friedrichs v. California Teachers Association. This case, which began with a lawsuit funded by antiunion organizations, raises questions about the constitutionality of agency-fee payments charged to nonmembers by public-sector unions. Suing the California Teachers Association and a local California school district, the plaintiffs argue that agency-fee clauses in the public sector violate the First Amendment. The Supreme Court accepted two questions for review. The first question is whether the Court should overrule its 1977 decision in Abood v. Detroit Board of Education, which deemed agency fees constitutional. The second question is whether requiring public employees to object to subsidizing speech by public-sector unions, rather than requiring that they consent to subsidizing such speech, violates the First Amendment. The amicus brief argues that agency fees are an essential component of states’ management of their most important institutions and provides examples of cooperation between unions and employers, including examples of AAUP chapters that worked to resolve difficult issues in higher education. It also notes that agency fees are spent on activities that substantially benefit the fee payers. The use of agency fee to advance these vital interests establishes that charging agency fees to nonmembers does not violate the First Amendment.

To read the amicus briefs, along with detailed summaries of each case, visit /amicus-briefs.