AAUP Amicus Briefs

See also Amicus Briefs Archives (1999-2004).

For information on how to submit a request for amicus assistance, please read the AAUP Amicus Request 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.

The first category of briefs generally relate squarely to issues in higher education – for instance, tenure, academic freedom, economic security for faculty members, the meaning of a faculty handbook, or faculty members’ intellectual property rights. Examples of such cases are Otero-Burgos vs. Inter-American UniversityHong v. Grant, Schrier v. University of Colorado, Saxe v. Board of Trustees of Metropolitan State College of Denver, and Pittsburg State University/Kansas NEA v. Kansas Board of Regents, PSU and PERB, all described below.

The second kind of briefs are generally filed in cases that could have a significant impact on faculty but do not arise in the context of higher education or do not squarely implicate the First Amendment or free speech rights. In these cases, we can preserve our resources by working with other organizations to articulate shared concerns. For instance, Crawford v. Metropolitan Government of Nashville and Davidson County, described below, involved the limits of Title VII protection for an employee who responds to questions as part of an internal sexual harassment investigation. The AAUP joined other interested organizations in submitting a brief to the Supreme Court, which agreed with the AAUP and our partners that Title VII was intended to cover employees who participate in a variety of ways in efforts to root out sexual harassment. Although the case originated in a government office and not a university, this holding helps to protect any faculty member who is asked to provide information in an internal sexual harassment investigation or who participates in a faculty grievance committee focusing on harassment- or discrimination-related disputes.

Similarly, the AAUP signed on to an amicus brief in a case involving an employment dispute at a nuclear power laboratory (Meacham v. KAPL, below). This case involved the Age Discrimination in Employment Act, and asked who has the burden of showing whether an employee was fired because of his or her age. Although the case did not arise in a university context, the AAUP signed on because we believed that our members would be harmed if the Supreme Court concluded that an employee had the difficult responsibility of obtaining information about an employer’s decision making. The Supreme Court agreed that the burden of proof must rest upon the employer, helping to protect the significant proportion of faculty members who are protected by the Age Discrimination in Employment Act.

In short, the AAUP stands watch for cases that relate to higher education at their core as well as those that may, if decided badly now, have damaging consequences for faculty later. Our amicus briefs help to increase the influence of our members, safeguard important constitutional and contractual rights, and ultimately contribute to an academic environment that allows all faculty members to flourish.