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 2011, the American Tradition Institute served a FOI request on the University of Virginia regarding Professor Mann’s climate research. The University took the position that the majority of the records were not subject to public disclosures.  Thereafter, ATI petitioned to compel the production of these documents.  Professor Michael Mann sought to intervene, arguing that the emails in question were his and therefore he should have standing in any litigation relevant to any document release. AAUP submitted a letter to the 31st Judicial Circuit Court of Virginia in support of Mann’s intervention, and the court granted him standing.

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 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 an attempt to attain diversity, the University of Texas system replaced an earlier admissions plan which had explicitly considered race with a “Personal Achievement Index” (PAI). The PAI is produced through a holistic review of applications intended to identify students whose achievements are not accurately reflected by their test scores and grades alone. The PAI includes an evaluation of required written essays and a “personal achievement score,” which is made up of factors such as socio-economic status, languages at home, and whether the student lives in a single-parent household. In addition, the state legislature and the university adopted a variety of other initiatives to increase diversity.

The AAUP filed an amicus brief with the Fifth Circuit in support of the UT system.  Specifically, the brief focused on the benefits of a diverse student body and pointed out that the University of Texas specifically modeled its admissions policy on a similar policy endorsed by the Supreme Court.

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.

Three rejected white female applicants for admission to the University of Georgia sued the state seeking admission and damages based on violations of the Civil Rights Act.

Discrimination and Sexual Harassment

Naiel Nassar, M.D. served as an Assistant Professor of Internal Medicine and Associate Medical Director with the University of Texas Southwestern Medical Center and complained that he allegedly was being harassed by a Supervisor, Dr. Levine. He later got a job with Parkland, an affiliated clinic, and submitted a letter of resignation in which he asserted that his "primary reason" for resigning was because of Dr. Levine's harassing and discriminatory behavior. Shortly thereafter, Parkland withdrew its job offer.

Dr. Nassar brought suit in federal court, accusing UTSW of orchestrating Parkland's refusal to hire him in retaliation for his discrimination complaints, in violation of Title VII. The Supreme Court held that the appropriate standard of proof in retaliation cases was the narrower “but for” causation standard.  The American Council on Education (ACE) filed an amicus brief in support of UTSW arguing that AAUP policies supported the higher burden of proof.  The AAUP filed an amicus brief in response, arguing that ACE had misinterpreted AAUP policies and that in fact AAUP policies supported the "but for" standard in retaliation 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 June 2012, the National Labor Relations Board (NLRB) invited briefs from interested parties on the question of whether graduate student assistants may be statutory employees within the meaning of Section 2(3) of the National Labor Relations Act. AAUP co-signed with the AFL-CIO, AFT, and NEA, on an amicus brief which was filed on July 23, 2012, and argues that the NLRB should overrule Brown University and return to its prior determination that graduate student assistants who “‘must perform work, controlled by the Employer, and in exchange for consideration’” are statutory employees, “‘notwithstanding that they are simultaneously enrolled as students.’”

In May 2012, the National Labor Relations Board (NLRB) invited briefs from interested parties on the question of whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or are excluded managers. The AAUP is of the position that faculty are not managers, and submitted an amicus brief urging the NLRB to develop a legal definition of employee status “in a manner that accurately reflects employment relationships in universities and colleges and that respects the rights of college and university employees to exercise their rights to organize and engage in collective bargaining."

This National Labor Relations Board case raised the issue of whether graduate assistants are "employees" under the National Labor Relations Act.

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.

This case concerns professors at Georgia State University who copied and distributed copyrighted works for use in their courses. The professors argue that their actions are considered fair use. The AAUP urged the court to side with GSU and argued that in cases where the materials encompass more than a modest excerpt, the use may nonetheless be transformative, and the failure to consider whether the use was transformative would burden or restrict countless highly expressive uses that have long been an essential teaching tool.

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.

Dr. Laurence Kant, who is of the Jewish faith, was an Associate Professor of the History of Religion at the Lexington Theological Seminary, which is affiliated with the Disciples of Christ, a denomination of the Christian faith. LTS granted Dr. Kant tenure in March 2006.  However, LTS terminated Dr. Kant’s contract at the end of the spring 2009 semester, citing financial exigency as the impetus for its decision. Following his termination in 2009, Dr. Kant filed a complaint against LTS, “alleging that LTS had breached his contractual right to tenured employment and breached the implied duty of good faith and fair dealing.” Following a hearing on LTS’ motion to dismiss the case as an “ecclesiastical matter,” the district court sustained LTS’ motion and concluded that Dr. Kant was a “ministerial employee” due to the subject matter of his course load.  Concluding that the ministerial exception thus applied in the case, and “that the issues in the case also involved an ecclesiastical matter,” the district court ruled that it lacked the requisite subject matter jurisdiction over the controversy.

The AAUP filed an amicus brief on behalf of Dr. Kant in April 2013.  The brief argued that the school was bound by the contract that it had voluntarily entered into.

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.”