Amicus Briefs and Legal Developments

In March, the AAUP joined with Brady: United against Gun Violence and its youth-led initiative, Team Enough, in submitting an amicus brief to the Michigan Supreme Court. The brief supports the defendant in the appeal of Joshua Wade v. University of Michigan, affirming a lower-court ruling that the university’s prohibition on firearms does not infringe on Second Amendment rights. It argues in favor of the right to impose gun-control measures on campuses to protect faculty members and students and explains how the presence of firearms could have a negative impact on academic freedom. Citing a 2015 statement opposing “campus-carry” laws that the AAUP issued jointly with the American Federation of Teachers, the Association of American Colleges and Universities, and the Association of Governing Boards of Universities and Colleges, the brief notes that “students and faculty members will not feel comfortable discussing controversial subjects if they think there might be a gun in the room,” and it summarizes research that supports this claim.

That same month the AAUP also submitted a brief to the Oregon Court of Appeals in a case that involves the distribution of antiunion FAQs by Oregon State University. The appeal arose from an Oregon Employment Relations Board decision—based on the filing of an unfair labor practices complaint by United Academics of Oregon State University—which found that the university had violated a state law requiring neutrality in union organizing drives by circulating the FAQs. According to the board, after soliciting faculty questions, the OSU administration wrote or edited many of the questions in the FAQs, presented them as having been asked by members of the faculty, and failed to disclose substantive changes to some questions. Oregon State University and six other public universities submitted an amicus brief that argued that the FAQs were protected by shared governance. The AAUP amicus brief challenged that claim, explaining the importance of shared governance as a framework for faculty participation in decision-making and asserting that the unilaterally created FAQs neither constituted nor contributed to meaningful shared governance.

This spring also brought positive developments in two legal cases in which the AAUP had previously filed amicus briefs.

The first case involves Margaret DeWeese-Boyd, a professor of social work who alleges that Gordon College had denied her a promotion because of her outspoken criticism regarding LGBTQ issues at the Christian college. As reported in the winter issue of Academe, the AAUP filed an amicus brief in support of DeWeese-Boyd, arguing that she is not a “minister” and that the college had inappropriately invoked the “ministerial exception” to First Amendment law in support of its position. In March, the Massachusetts Supreme Court found that DeWeese-Boyd is not a ministerial employee and returned the case to the trial court to determine whether the university had violated Massachusetts antidiscrimination laws.

More good news came in a ruling that allows Jennifer Freyd to proceed with a pay-discrimination lawsuit against the University of Oregon. After a lower court dismissed her suit, Freyd filed an appeal with the Ninth Circuit Court of Appeals, and the AAUP submitted an amicus brief in September 2019 supporting her case. The brief provided information about gender-based salary discrimination in academia and about the nature of faculty work, explaining that the pay differentials Freyd had documented were not justified and arguing that her department’s retention-raise practice had a discriminatory impact that the university could have corrected. The appeals court found in March that the faculty positions of women and men were “comparable” for legal purposes and that the university could have avoided the discriminatory impact of retention raises by revisiting the salaries of comparable faculty when retention raises were given.

Amicus briefs in which the AAUP participates appear, along with summaries of the cases they support, on the AAUP website at https://www.aaup.org/our-work/legal-program/amicus-briefs. The summaries are updated after courts issue decisions in the cases.