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AAUP Amicus Briefs

For information on how to submit a request for amicus assistance, please read about the amicus curiae brief application process.

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

Margaret DeWeese-Boyd v. Gordon College, D. Michael Lindsay, and Janel Curry, No. SJC-12988 (Mass. Sup. Ct. 2020) (appeal pending)

On December 14, 2020, the AAUP authored and filed an amicus brief in the Supreme Judicial Court of Massachusetts in support of a lower court decision holding that plaintiff-appellee Professor Margaret DeWeese-Boyd is NOT a “minister” and thus was protected by Massachusetts anti-discrimination laws. Professor DeWeese-Boyd had sued Gordon College alleging that it violated Massachusetts discrimination law when it denied her a promotion due to her activity on LGBTQ issues. Defendant-Appellant Gordon College, a religiously affiliated institution, argued that it was exempt from employment discrimination law because it claimed DeWeese-Boyd was a “minister” within the First Amendment “ministerial exception.” The amicus brief used the AAUP’s well-established principles and standards guidance to the Massachusetts Supreme Court in applying the “ministerial exception” in the context of higher education institutions.

Pennsylvania v. DeVos, No. 1:20-cv-1468 (D.D.C. August 12, 2020); New York v. U.S. Dep't of Educ., 20-cv-4260, (S.D.N.Y. Aug. 9, 2020)

In two similar cases in which the AAUP joined amicus briefs, the district courts for the District of Columbia and for the Southern District of New York denied motions for preliminary injunctions seeking to delay the August 14, 2020, deadline for the implementation of Title IX regulations issued by the Trump administration. On May 19, 2020 the Trump administration issued new Title IX regulations, effective August 14, 2020, that significantly changed multiple aspects of Title IX as applied to higher education institutions, including significantly modifying the complaint investigation and hearing process, the definition of harassment, and the rights of the accused. In both cases, plaintiffs sued the administration claiming that the regulations should be invalidated, and they sought a preliminary injunction delaying the implementation of the regulations. Both courts denied the request for a preliminary injunction. The DC court explained that “although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation.” The courts’ decisions are not a final ruling on the underlying claims that the regulations should be invalidated, and those claims will continue to be litigated.

Harvard and Massachusetts Institute of Technology v. Department of Homeland Security, No. 1:20-cv-11283 (D.C. MA, July 13, 2020)(amicus brief filed)

Following a legal challenge, supported by an amicus brief in which the AAUP joined, the US Department of Homeland Security (DHS) rescinded a directive that, during the COVID-19 crisis, foreign students engaged entirely in online study would not be allowed in the United States. In March 2020, DHS and Immigration and Customs Enforcement (ICE), issued guidance that, for the duration of the COVID-19 emergency, F-1 and M-1 visa holders were allowed to participate in online education while remaining in the United States. On July 6, 2020, DHS issued a new directive that rescinded this COVID-19 exemption for international students, requiring all students on F-1 visas whose university curricula are entirely online to depart the country and barring any such students currently outside the United States from entering or reentering the United States. Shortly after DHS issued the directive, Harvard University and the Massachusetts Institution of Technology filed a complaint in the US District Court in Massachusetts for declaratory and injunctive relief, to prevent the directive from taking effect so that thousands of international students can continue to participate in educational opportunities in the United States, even if their course of study is online.

Academic Freedom and Employee Speech

John McAdams v. Marquette University, 383 Wisc. 2d 358, 914 N.W.2d 708 (2018)

In one of the best decisions on academic freedom in decades, the Wisconsin Supreme Court, citing AAUP policies and an amicus brief filed by the AAUP, ruled that Marquette University wrongly disciplined Dr. John McAdams for comments he made on his personal blog in 2014. Dr. McAdams criticized a graduate teaching instructor by name for her refusal to allow a student to debate gay rights because "everybody agrees on this." The blog was publicized in the national press, and the instructor received numerous harassing communications from third parties.  Marquette suspended Dr. McAdams, and demanded an apology as a condition of reinstatement. Relying heavily on AAUP’s standards and principles on academic freedom, as detailed in AAUP’s amicus brief, the court held that “the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract's guarantee of academic freedom."  Therefore, the court reversed and remanded this case with instructions that the lower court enter judgment in favor of Dr. McAdams and determine damages, and it ordered Marquette to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits.

Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014)

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.

Capeheart v. Terrell, 695 F.3d 681 (7th Cir. 2012)

The AAUP has filed an amicus brief (.pdf) in the U.S. Court of Appeals for the Seventh Circuit in support of Loretta Capeheart, a tenured professor at Northeastern Illinois University (NEIU). Professor Capeheart sued NEIU after the provost disregarded a faculty vote electing Capeheart chair of the Justice Studies Department. Capeheart alleges that the provost refused to appoint her to the position in retaliation for her advocating on behalf of two students who were arrested by campus police while protesting CIA recruiters at the university’s job fair. Capeheart further claims that she was retaliated against because she made statements at a campus event, featuring the provost, blaming excessive administrative spending for budget problems that she claimed led to a low number of Latino faculty. In her lawsuit, Capeheart argues that the provost’s decision is in retaliation for this advocacy and speech and, therefore, NEIU has violated her First Amendment speech rights.

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Academic Freedom and Institutional Matters

Margaret DeWeese-Boyd v. Gordon College, D. Michael Lindsay, and Janel Curry, No. SJC-12988 (Mass. Sup. Ct. 2020) (appeal pending)

On December 14, 2020, the AAUP authored and filed an amicus brief in the Supreme Judicial Court of Massachusetts in support of a lower court decision holding that plaintiff-appellee Professor Margaret DeWeese-Boyd is NOT a “minister” and thus was protected by Massachusetts anti-discrimination laws. Professor DeWeese-Boyd had sued Gordon College alleging that it violated Massachusetts discrimination law when it denied her a promotion due to her activity on LGBTQ issues. Defendant-Appellant Gordon College, a religiously affiliated institution, argued that it was exempt from employment discrimination law because it claimed DeWeese-Boyd was a “minister” within the First Amendment “ministerial exception.” The amicus brief used the AAUP’s well-established principles and standards guidance to the Massachusetts Supreme Court in applying the “ministerial exception” in the context of higher education institutions.

Dep't of Homeland Sec. v. Regents of Univ. of Cal. et. al., No. 18-587 (U.S. S.Ct. June 18, 2020)

In a case in which the AAUP joined an amicus brief, the Supreme Court allowed the Deferred Action on Childhood Arrivals (DACA) program to stand. The DACA program allows undocumented immigrants brought to the United States as children to remain in the country legally and expands access to higher education by providing eligibility for in-state tuition and state-funded grants and loans to participants. The ourt found that the Trump administration had not followed proper administrative procedure in seeking to overturn DACA, particularly the forbearance of deportation, and had acted arbitrarily and capriciously in doing so. The court noted, “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” While the ruling leaves open the possibility that this administration may try again to overturn DACA, this decision is a major victory for the dreamers and their supporters.

City & Cty. of San Francisco v. Trump, 897 F. 3d 1225 (9th Cir. 2018)

The Circuit Court of Appeals for the Ninth Circuit declared unconstitutional the Trump administration's executive order withholding federal funds from sanctuary cities and counties. The AAUP joined an amicus brief opposing the executive order and supporting a permanent injunction preventing its enforcement. The appeals court held that under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the executive branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, the panel affirmed the district court’s decision finding that the Executive Order was unconstitutional. The appeals court upheld the permanent injunction preventing enforcement of the order against the city and county of San Francisco and in California, but lifted the nationwide injunction and sent the case back to the lower court for a more searching inquiry into the need for such relief.

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Academic Freedom and National Security

Harvard and Massachusetts Institute of Technology v. Department of Homeland Security, No. 1:20-cv-11283 (D.C. MA, July 13, 2020)(amicus brief filed)

Following a legal challenge, supported by an amicus brief in which the AAUP joined, the US Department of Homeland Security (DHS) rescinded a directive that, during the COVID-19 crisis, foreign students engaged entirely in online study would not be allowed in the United States. In March 2020, DHS and Immigration and Customs Enforcement (ICE), issued guidance that, for the duration of the COVID-19 emergency, F-1 and M-1 visa holders were allowed to participate in online education while remaining in the United States. On July 6, 2020, DHS issued a new directive that rescinded this COVID-19 exemption for international students, requiring all students on F-1 visas whose university curricula are entirely online to depart the country and barring any such students currently outside the United States from entering or reentering the United States. Shortly after DHS issued the directive, Harvard University and the Massachusetts Institution of Technology filed a complaint in the US District Court in Massachusetts for declaratory and injunctive relief, to prevent the directive from taking effect so that thousands of international students can continue to participate in educational opportunities in the United States, even if their course of study is online.

Trump v. Hawaii, 138 S. Ct. 2392 (2018)

On June 26, 2018 the Supreme Court of the United States by a 5-4 vote rejected a challenge to President Trump’s September 2017 Presidential Proclamation 9645 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats)—referred to as the “travel ban”—restricting immigration to the United States by citizens of eight countries, most of which are predominately Muslim. In an opinion by Chief Justice Roberts, the majority relied on the national security justifications for the ruling and held that the travel ban is fully consistent with Congress’s Immigration and Nationality Act as well as the Establishment Clause of the US Constitution. Justice Sonia Sotomayor, in dissent, lamented that the court had “blindly” endorsed “a discriminatory policy motivated by animosity toward Muslims.”

Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 198 L. Ed. 2d 643 (June 26, 2017) (No. 16-1436)(granting cert and granting stay in part), 138 S. Ct. 353, 199 L. Ed. 2d 203, (Oct. 10, 2017)(Vacating judgement as moot)

The AAUP joined with the American Council on Education and other higher education groups in an amicus brief to the US Supreme Court opposing the Trump administration’s Executive Order instituting a travel ban. We argue that people from the six countries identified in the ban should not be barred or deterred from entering the United States and contributing to our colleges and universities. The brief emphasized the significant value of foreign academics and the international exchange of scholarly work, and explained that “the EO jeopardizes the vital contributions made by foreign . . . . scholars, and faculty by telling the world in the starkest terms that American colleges and universities are no longer receptive to them.” On June 26, 2017, the Supreme Court upheld a stay of the ban for travelers and refugees who have a “credible claim” of a genuine relationship with an individual or institution in the United States. In October 2017, after the travel ban expired by its own terms, the Supreme Court vacated the lower court cases as moot.

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Academic Freedom and Research

Energy & Environment Legal Institute v. Arizona Board of Regents, Case No. 2CACV-2017-0002 (Ariz. App. Ct., Second App. Div., Sept 14, 2017) (unpublished)

In this decision the Arizona Court of Appeals rejected attempts by a “free market” legal foundation to use public records requests to compel faculty members to release emails related to their climate research. In an amicus brief in support of the scientists, the AAUP had argued that Arizona statute creates an exemption to public release of records for academic research records, and that a general statutory exemption protecting records when in the best interests of the state, in particular the state’s interest in academic freedom, should have been considered. The appeals court agreed and reversed the decision of the trial court that required release of the records and returned the case to the trial court so that it could address these issues.

The American Tradition Institute v. Rector & Visitors of the University of Virginia & Michael Mann, 287 Va. 330 (Va. April 17, 2014)

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.

Cuccinelli v. Rector & Visitors of the University of Virginia, 283 Va. 420 (2010)

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

Glass v. Paxton, 900 F. 3d 233 (5th Cir. 2018)

The Court of Appeals for the Fifth Circuit upheld a Texas law permitting the concealed carry of handguns on campus (the “campus carry law”) and a corresponding University of Texas at Austin (UT) policy prohibiting professors from banning such weapons in their classrooms. Faculty from UT filed suit and argued that the law and policy violated the First Amendment, Second Amendment, and Equal Protection Clause of the Fourteenth Amendment. The lower court dismissed the faculty’s claims and the faculty appealed. In its amicus brief, the AAUP argued that the law and policy requiring that handguns be permitted in classrooms harms faculty as it deprives them of a core academic decision and chills their First Amendment right to academic freedom. The appeals court rejected the faculty’s claims finding that they lacked standing under the First Amendment as it deemed that the harm was not certainly impending. The court also affirmed the dismissal of the Second Amendment and Equal Protection claims.

Sussex Commons Associates, LLC v. Rutgers, 416 N.J. Super. 537 (App.Div. 2010)

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.  

Burt v. Rumsfeld, 322 F. Supp. 2d 189 (D. Conn. 2004); Burt v. Gates, 502 F.3d 183 (2d Cir. 2007)

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. 

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Affirmative Action

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.) (1st Cir. Nov. 12, 2020)

In a great win for higher education, the First Circuit Court of Appeals affirmed that Harvard’s admissions process, which considers race as one factor among many when reviewing applicants, satisfies strict scrutiny by being narrowly tailored to achieve the compelling interest of diversity in its student body. The appellate decision arose from plaintiffs’ appeal of a district court judge’s decision that held that Harvard’s admissions policies do not discriminate against Asian American applicants.  The AAUP, together with forty other higher education associations, signed on to an amicus brief, ADD LINK prepared by the American Council on Education in support of the district court’s decision. The First Circuit upheld the district court and found that Harvard’s race-conscious admissions program survives strict scrutiny and does not violate Title VI of the Civil Rights Act of 1964. Harvard identified the specific, compelling goals that it achieves from diversity. The First Circuit also held, giving no deference to Harvard, that its admissions program is narrowly tailored and that it legitimately concluded that the alternatives were not workable.

Fisher v. Univ. of Tex., 136 S. Ct. 2198 (2016)

The US Supreme Court upheld the constitutionality of University of Texas at Austin’s affirmative action program in Fisher II, in which the AAUP joined an amicus brief. The brief argued that consideration of race in the admissions process is appropriate and advanced the AAUP’s longstanding view that diversity is essential not only for students but for the entire academic enterprise. In its second consideration of Fisher’s challenge to UT’s program, the Court confirmed that universities must prove that race is considered only as necessary to meet the permissible goals of affirmative action. In particular, the university must prove that “race-neutral alternatives” will not suffice to meet these goals. In Fisher II, the Court held that since UT had sufficient evidence that its “Top Ten” admissions policy based on class rank was not adequate, by itself, to meet its diversity goals, it could permissibly consider a student’s race as one factor in a broader assessment of qualifications. This opinion now enables universities to adopt affirmative action programs that meet constitutional requirements.    

Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014)

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."

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Discrimination and Sexual Harassment

Pennsylvania v. DeVos, No. 1:20-cv-1468 (D.D.C. August 12, 2020); New York v. U.S. Dep't of Educ., 20-cv-4260, (S.D.N.Y. Aug. 9, 2020)

In two similar cases in which the AAUP joined amicus briefs, the district courts for the District of Columbia and for the Southern District of New York denied motions for preliminary injunctions seeking to delay the August 14, 2020, deadline for the implementation of Title IX regulations issued by the Trump administration. On May 19, 2020 the Trump administration issued new Title IX regulations, effective August 14, 2020, that significantly changed multiple aspects of Title IX as applied to higher education institutions, including significantly modifying the complaint investigation and hearing process, the definition of harassment, and the rights of the accused. In both cases, plaintiffs sued the administration claiming that the regulations should be invalidated, and they sought a preliminary injunction delaying the implementation of the regulations. Both courts denied the request for a preliminary injunction. The DC court explained that “although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation.” The courts’ decisions are not a final ruling on the underlying claims that the regulations should be invalidated, and those claims will continue to be litigated.

Freyd v. University of Oregon, No. 19-35428 (9th Cir. 2019)(appeal pending)

On September 30, 2019, the AAUP filed an amicus brief in the Ninth Circuit Court of Appeals in support of Professor Jennifer Freyd, who sued the University of Oregon (UO) for pay discrimination based on significant pay disparities with male faculty members. The district court had dismissed the suit based, in part, on findings that Dr. Freyd and her male colleagues did not perform equal work, and that the reasons for the pay differentials did not have a disparate impact on women. AAUP’s amicus brief provides an overview of gender-based wage discrimination in academia, explains that the common core of faculty job duties of teaching, research, and service are comparable, and rebuts the finding of the district court that the pay differentials were justified.

Bostock v. Clayton County, Georgia, et al.; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, et al.; Altitude Express, Inc., et al. v. Zarda, Nos. 17-1618 (U.S. Jun. 15, 2020)

On June 15, 2020, in a case in which the AAUP joined an amicus brief, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on race, sex, religion, or national origin (“Title VII”) protects gay and transgender workers. The court held that because sexual orientation and gender identity cannot be explained as traits that someone has without referring to the sex of the person, discriminating based on those traits constituted discrimination “because of sex,” which is prohibited by Title VII. Thus, in affirming that Title VII’s broad scope, the Supreme Court extended protection of a powerful federal anti-discrimination law to those individuals who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth (“LGBTQ”).

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Faculty Collective Bargaining Rights

Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020)

On January 28, 2020, in a case in which the AAUP filed an amicus brief, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) issued a decision finding that adjunct faculty did not have the right to unionize at a religiously affiliated university under federal labor law. Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020) (“Duquesne”). The core issue was whether in applying federal labor law, the National Labor Relations Act (NLRA), to the faculty, the NLRB and the Courts would risk interfering in the religious affairs of Duquesne, thereby violating the Religion Clauses of the First Amendment. The NLRB used the test it set forth in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”), and found there was no danger of unconstitutional entanglement because the faculty in question did not perform a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief supported the NLRB test and pointed to the AAUP’s limitations clause as an example of how a comparable test has been applied in higher education. However, in a 2 to 1 decision, the DC Circuit rejected the Pacific Lutheran test, and applying a narrower bright-line test held that the NLRB did not have jurisdiction and therefore the adjunct faculty could not unionize under the NLRA.

Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. (2018)

On June 27, 2018, the United States Supreme Court overruled a 41 year precedent, Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and held that it is unconstitutional to collect agency fees from un-consenting nonmembers. For over four decades the court had repeatedly found constitutional the agency-fee system under which unions could charge an agency fee to public employees represented by those unions but who don’t want to be union members. This system was applied in twenty-two states and across thousands of labor agreements covering millions of employees. The majority’s decision (written by Justice Alito) overturned this precedent on the theory that collection of agency fees from nonmembers “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” The court did not delay the effective date of its decision and therefore public unions and employers generally cannot collect agency fees from nonmembers after June 27, 2018. The court did recognize that certain fees could be collected from nonmembers but only if the nonmember “clearly and affirmatively consents before any money is taken from them.”

University of Southern California v. National Labor Relations Board, No. 17-1149 (D.C. Cir. March 12, 2019)

On March 12, 2019, the District of Columbia Circuit Court of Appeals issued a decision in this case. On December 28, 2017, the AAUP submitted an amicus brief, written primarily by AAUP General Counsel Risa Lieberwitz, to the US Court of Appeals for the DC Circuit urging the court to uphold the NLRB’s determination that non-tenure-track faculty at USC are not managerial employees. The brief supported the legal framework established by the NLRB in Pacific Lutheran University and describes in detail the significant changes in university hierarchical and decision-making models since the US Supreme Court ruled in 1980 that faculty at Yeshiva University were managerial employees and thus ineligible to unionize under the National Labor Relations Act. In its decision, the DC Circuit Court generally upheld the Pacific Lutheran University framework, but found that the board erred when it held that the “subgroup” of non-tenure-track faculty in the proposed unit must constitute a majority of a university committee to exercise managerial control.

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Intellectual Property

Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014)

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.”

Board of Trustees of the Leland Stanford Junior University, v. Roche Molecular Systems, Inc. et al., 131 S. Ct. 2188 (2011)

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. 

Cameron v. Arizona Board of Regents, 2011 Ariz. App. Unpub. LEXIS 1129 (2011), petition for review denied, 2012 Ariz. LEXIS 220 (2012).

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.

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Tenure

Vergara v. California, 246 Cal. App. 4th 619, 209 Cal. Rptr. 3d 532 (Cal. App. 2d Dist., May 3, 2016)

In this case, the Court of Appeal of California issued a decision overturning 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 AAUP submitted an amicus brief which 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 Court of Appeal reversed the trial court’s decision, holding that the statutes themselves did not create equal protection violations, so they are not unconstitutional.

Kant v. Lexington Theological Seminary, No. 2912-SC-000502-DG, 2014 Ky. LEXIS 160 (Ky. April 17, 2014).

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.

Branham v. Thomas M. Cooley Law School, 689 F.3d 558 (6th Cir. 2012).

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.

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