On September 24, 2018, the AAUP filed an amicus brief in the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) in support of a National Labor Relations Board (“NLRB”) decision enforcing adjunct faculty rights to unionize at a religiously affiliated university. Duquesne University (“Duquesne”) v. National Labor Relations Board, No.-18-1063 (D.C. Cir. 2018)(appeal pending). The amicus brief argues that there would be no unconstitutional entanglement with religion if the NLRB’s analysis in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”) were applied to determine whether Duquesne’s adjunct faculty performed a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief also outlines how the AAUP’s longstanding principles and standards on religious exemptions (or its “limitations clause”) can provide guidance to the court in its analysis.
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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
AAUP joined an amicus brief prepared by the American Council on Education (ACE) (and joined by thirty-six higher education organizations) for submission to the United States District Court for the District of Massachusetts, Boston Division, in opposition to the motion for summary judgment by Students for Fair Admissions (SAFFA), which challenges Harvard College’s admissions policies. For many years, the AAUP has advocated in favor of affirmative action in higher education, emphasizing the educational value of diversity, through amicus briefs in Supreme Court cases from Regents of the University of California v. Bakke in 1978 to Fisher v. Texas in 2016, and through AAUP policy. See “Affirmative Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women on College and University Faculties,” AAUP, Policy Documents and Reports, 157-163 (11th ed. 2015). This amicus brief argues that “a diverse student body is essential to the educational objectives of colleges and universities, and that each institution should be able to exercise its academic judgment to determine within broad limits the diversity that will advance its individual mission.” The brief further argues that holistic review (of applications) remains a cornerstone for race-conscious admissions because it gives each applicant individualized consideration and reduces no one to her race.
The AAUP filed an amicus brief in the United States Court of Appeals for the Fifth Circuit that argues that the termination of Professor Theresa Buchanan, for making statements in the classroom that the university improperly characterized as sexual harassment, violated her academic freedom. The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom. AAUP argues that the university’s policies, and their application to the facts, failed this test and thus violated Professor Buchanan’s academic freedom.
Academic Freedom and Employee Speech
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.
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.
Academic Freedom and Institutional Matters
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.
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.
Academic Freedom and National Security
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.”
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.
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.
Academic Freedom and Research
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.
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
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.
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.
Affirmative Action
AAUP joined an amicus brief prepared by the American Council on Education (ACE) (and joined by thirty-six higher education organizations) for submission to the United States District Court for the District of Massachusetts, Boston Division, in opposition to the motion for summary judgment by Students for Fair Admissions (SAFFA), which challenges Harvard College’s admissions policies. For many years, the AAUP has advocated in favor of affirmative action in higher education, emphasizing the educational value of diversity, through amicus briefs in Supreme Court cases from Regents of the University of California v. Bakke in 1978 to Fisher v. Texas in 2016, and through AAUP policy. See “Affirmative Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women on College and University Faculties,” AAUP, Policy Documents and Reports, 157-163 (11th ed. 2015). This amicus brief argues that “a diverse student body is essential to the educational objectives of colleges and universities, and that each institution should be able to exercise its academic judgment to determine within broad limits the diversity that will advance its individual mission.” The brief further argues that holistic review (of applications) remains a cornerstone for race-conscious admissions because it gives each applicant individualized consideration and reduces no one to her race.
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.
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."
Discrimination and Sexual Harassment
The AAUP filed an amicus brief in the United States Court of Appeals for the Fifth Circuit that argues that the termination of Professor Theresa Buchanan, for making statements in the classroom that the university improperly characterized as sexual harassment, violated her academic freedom. The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom. AAUP argues that the university’s policies, and their application to the facts, failed this test and thus violated Professor Buchanan’s academic freedom.
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.
Faculty Collective Bargaining Rights
On September 24, 2018, the AAUP filed an amicus brief in the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) in support of a National Labor Relations Board (“NLRB”) decision enforcing adjunct faculty rights to unionize at a religiously affiliated university. Duquesne University (“Duquesne”) v. National Labor Relations Board, No.-18-1063 (D.C. Cir. 2018)(appeal pending). The amicus brief argues that there would be no unconstitutional entanglement with religion if the NLRB’s analysis in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”) were applied to determine whether Duquesne’s adjunct faculty performed a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief also outlines how the AAUP’s longstanding principles and standards on religious exemptions (or its “limitations clause”) can provide guidance to the court in its analysis.
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.”
The AAUP submitted an amicus brief December 28 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 supports 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.
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
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.
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.
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