Three Legal Victories

By Rachel B. Levinson

The AAUP recently achieved three significant victories in court cases in which we submitted amicus briefs. In the first case, Otero-Burgos v. Inter- American University, the U.S. Court of Appeals for the First Circuit issued a ringing endorsement of the economic basis for tenure and the interconnection among tenure, economic security, and academic freedom. In reaching its decision, the court relied heavily upon the AAUP’s brief and recommended policies.

Professor Edwin Otero-Burgos had been dismissed from his tenured position after appealing a decision by the administration to allow a student’s grade to be raised. In 2006, the lower court concluded that the only remedy for a violation of Otero-Burgos’s contract came from a Puerto Rico statute, Law 80, which grants a certain amount of severance payment—but nothing else—to an employee lacking a “fixed-term” contract who is dismissed without just cause.

The AAUP’s amicus brief, filed with assistance from the law firm Covington and Burling, argued that the remedy afforded by Law 80 is “entirely inadequate” to vindicate tenure protections and that the law “could not reasonably have been intended to apply to tenured faculty members.”

In its decision, the appeals court observed that the “AAUP warns persuasively that affirming the district court’s decision would ‘subvert the time-honored consensus as to the nature of tenure, undoing a careful balance between the respective interests of professors and universities,’ effectively ‘convert[ing] tenured professors into at-will employees . . . to the detriment of society and, indeed, of institutions of higher education.’” The court agreed that if Otero-Burgos had been fired in violation of his tenure contract, he was entitled to a “panoply” of remedies, and sent the case back for the district court to rule on his breach of contract claim.

The other two cases, both decided in the U.S. Supreme Court, reassert the Association’s commitment to broad civil rights protections for students, faculty, and other higher education workers.

In Fitzgerald v. Barnstable School Committee, the Supreme Court ruled that Congress did not intend to limit the remedies available to a student who has been discriminated against on the basis of sex.

The suit was filed by parents of a kindergartener, who believed the school district and superintendent had not responded sufficiently to their complaints that a schoolmate was sexually harassing their daughter. The Supreme Court had to consider whether the parents could sue the school system under two statutes or only one. The two statutes confer very different rights upon a victim of sexual harassment: perhaps most significantly, one law requires the victim to show that a school acted with “deliberate indifference” toward “severe and pervasive” harassment, while the other requires the plaintiff merely to show that the school treated female and male victims differently.

Because it has consistently championed the rights of all persons in the educational context to be free from discrimination and harassment and to have equal access to educational opportunities, and because this decision would have serious consequences in the college and university setting as well, the AAUP joined a “friend of the court” brief submitted by the American Civil Liberties Union and the National Women’s Law Center arguing that victims must be allowed to use both statutes to obtain comprehensive protection against sex discrimination. The Supreme Court agreed and ruled in favor of the girl’s parents.

In Crawford v. Metropolitan Government of Nashville and Davidson County, a municipal employee who was interviewed as a witness in a sexual harassment investigation was subsequently dismissed. A federal appeals court held that, because she had not actively “opposed” the harassment and because no charge had been filed with the Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964 did not protect her from being fired in retaliation for her participation.

The AAUP joined the National Employment Lawyers Association, the National Employment Law Project, and Public Justice, P.C., in submitting a brief in support of the employee. As the AAUP pointed out, faculty members and other employees are asked to participate in faculty review committee hearings at an investigative stage; those committees could not function effectively if witnesses were not protected against retaliation.

In agreeing with the amicus organizations and the employee, the Supreme Court recognized the impossible dilemma that the appeals court’s decision posed for employees. As Justice David Souter said in his opinion for a unanimous Court, “Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

For additional information on these cases, see the AAUP’s Web site.