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.

Academic Freedom and Employee Speech

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.

This case involved the dismissal of a tenured faculty member from the Saint Meinrad School of Theology who signed an open letter to the Pope, asking that continued discussion be permitted concerning the question of ordaining women to the priesthood.

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

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.

This case involves a challenge by faculty and students at the University of Illinois-Champaign to the administration's policy prohibiting them from communicating with prospective student athletes.

Academic Freedom and National Security

The AAUP joined several other organizations in filing suit against 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.

Following 9/11, the  National Security Agency (NSA) undisputedly eavesdropped without warrants international telephone and e-mail communications in which at least one of the parties was “reasonably” suspected of al Qaeda ties.  Prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by phone and e-mail with people in the Middle East filed suit, argued that the NSA wiretapping program violates their First Amendment rights by impairing their ability to obtain information from sources abroad, conduct scholarship, and engage in advocacy. 

The AAUP, American Academy of Religion, and PEN American Center filed an action against the Secretary of the Department of Homeland Security and the Secretary of State, challenging the exclusion Professor Tariq Ramadan from entering the United States to accept speaking invitations extended by the AAUP and other scholarly organizations.

Academic Freedom and Research

A recent court decision from Arizona validated the AAUP’s continuing support for the academic freedom rights of faculty members engaged in research by finding, as the AAUP argued in its amicus brief, that records requests for faculty research materials could be rejected because of the chilling effects of such disclosures. The case arose from a public records request involving University of Arizona faculty members engaged in climate research submitted by the Energy and Environment Legal Institute, a legal foundation seeking to “put false science on trial.” The AAUP submitted an amicus brief raising “the significant chilling effects that will result from forcing scholars and institutions to disclose collegial academic communications and internal deliberative materials .” The court ruled that the university could withhold the records, accepting as the primary reason that producing the documents “would have a chilling effect on the ability and likelihood of professors and scientists engaging in frank exchanges of ideas and information .”

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 Louisiana Supreme Court amended a rule that imposed limits on the types of clients law school clinics may represent.  A number of plaintiffs, including professors and students, challenged this rule, alleging, in part, that it violated the academic freedom of professors to teach and students to learn.

This case involved efforts by some taxpayers and Indiana state legislators to compel Indiana University-Purdue University to halt the campus production of a controversial play, which the plaintiffs alleged is an "undisguised attack on Christianity and the Founder of Christianity, Jesus Christ."

Christina Axson-Flynn, a former student  at the University of Utah, sued her university theater department professors for violating her First Amendment rights by requiring  students perform in-class plays that Axson-Flynn found religiously objectionable.

Affirmative Action

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."

In this case, the U.S. Supreme Court generally upheld the constitutionally of affirmative action plans as implemented under the Court’s previous decisions. The Court generally reaffirmed its prior holdings that found that diversity in educational institutions was a compelling state interest that could necessitate the use of an affirmative action program.  However, the Court returned the case to the appeals court finding that the lower court had applied the wrong standard of proof in determining whether the affirmative action plan was necessary to attain the goal of diversity.

A white female student sued the University of Washington, claiming she was denied entry to the University of Washington Law School while less qualified minority applicants were admitted over her.

Discrimination and Sexual Harassment

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.

Consolidating three cases, the U.S. Supreme Court addressed whether the "sovereign immunity" clause of the Eleventh Amendment prohibits public employees, including faculty members, from suing public institutions, including colleges and universities, under the Age Discrimination in Employment Act (ADEA) for damages .

Dr. Janice Anderson sued the State University of New York alleging a number of claims, including violation of the Equal Pay Act and Title VII.

Faculty Collective Bargaining Rights

In this case the National Labor Relations Board published a significant decision expanding the organizing rights of private-sector faculty members. The Board modified the standards used to determine two important issues affecting the ability of faculty members at private-sector higher education institutions to unionize under the National Labor Relations Act: first, whether certain institutions and their faculty members are exempted from coverage of the Act due to their religious activities; and second, whether certain faculty members are managers, who are excluded from protection of the Act. In addressing this second issue, the Board specifically highlighted, as AAUP had in its amicus brief submitted in the case, the increasing corporatization of the university.

The AAUP filed an amicus brief with the National Labor Relations Board arguing that graduate assistants at private sector institutions should be considered employees with collective bargaining rights. In its amicus brief, the AAUP argued that the board should overrule the test of employee status applied in Brown to graduate assistants, but did not take a position as to whether the unionization of college football players was appropriate.

These cases addressed whether graduate student assistants are employees who have collective bargaining rights under the National Labor Relations Act. AAUP co-signed an amicus brief and argued that the Board should overrule Brown University and return to its prior determination that graduate student assistants are statutory employees. While the case was pending, the union and NYU resolved their disputes and NYU agreed to hold a union election (which the union overwhelmingly won). Therefore, the union withdrew the election petition and the Board declined to rule on the case. The question of whether graduate students are employees is an issue in other cases in which AAUP has submitted amicus briefs.

Intellectual Property

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.

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.”

This case involves a challenge by the Kansas National Education Association (KNEA) to the Kansas Board of Regents’ proposed policy giving ownership of faculty intellectual property to the universities at which they work. The Kansas Supreme Court ruled that intellectual property rights are not simply assumed to be work-for-hire belonging to the university and can be a subject of collective bargaining.

Tenure

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.

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.

In 2003, the Board of Trustees at Metropolitan State College of Denver attempted to adopt a new faculty handbook that unilaterally modify certain tenure provisions, potentially “eviscerating the meaning of tenure in the academic community.”