Academic Freedom

Jensen v. Brown, No. 23-2545 (9th Cir. 2024)

The AAUP and the Nevada Faculty Alliance filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of a math professor who faced retaliation from college administrators after he voiced concerns about the lowering of curriculum standards and worsening respect for shared governance.

Kilborn v. Amiridis, No. 23-3196 (7th Cir. 2024)

The AAUP filed an amicus brief in the United States Court of Appeals for the Seventh Circuit in support of a law school professor who faced retaliation from his university for a question he included on a final exam, and for other classroom speech he engaged in during teaching.

Pernell v. Lamb, No. 22-13992 (11th Cir. 2023)

On June 23, 2023, the AAUP filed an amicus brief in the United States Court of Appeals for the Eleventh Circuit in support of Florida faculty who are challenging the state’s “Stop WOKE” Act. That law, passed in 2022 and formally known as the Individual Freedom Act, prohibits professors at Florida’s public universities from expressing certain disfavored viewpoints while teaching on topics including those involving racial and sexual discrimination and injustice. The AAUP’s brief argues that the law violates the First Amendment and threatens to destroy academic freedom, sabotage higher education, and undermine democracy.

Texas Attorney General, Opinion Request No. 0421-KP (Sept. 3, 2021)(amicus brief filed)

On September 3, 2021, the AAUP submitted a brief to the Texas attorney general arguing against a request from a state legislator for an opinion on whether teaching certain ideas about race, including critical race theory (CRT), would violate “Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, [or] Article 1, Section 3 and Section 8 of the Texas Constitution.” This request is part of a broader attack on teaching and training on the issues of racism and racial justice, manifested in proposed state laws limiting teaching on “divisive subjects” and in requests for state attorney general opinions forbidding such teaching. In advocating against the attempt to circumscribe teaching about racism, the brief focuses on Supreme Court First Amendment decisions and AAUP policy concerning the societal role of education, academic freedom, and teachers’ expertise in developing curriculum. Thus, the brief addressed the broader political themes that are behind many of these attacks on teaching and the AAUP policies applicable to these attempted infringements of academic freedom.

Wade v. University of Michigan, SC: 156150 (Mich. Nov. 6, 2020)

On March 1, 2021, the AAUP joined an amicus brief with Brady: United Against Gun Violence (formerly the Brady Center) and Team ENOUGH filed in the State of Michigan Supreme Court in support of an appeal affirming that the University of Michigan’s prohibition on firearms does not infringe on Second Amendment rights. The brief argues that the university’s firearm prohibition furthers its compelling and critical interest in maintaining an environment that safeguards the free speech and academic freedom interests of university faculty to research and teach controversial topics and advance the university’s core institutional objectives and the students’ ability to freely exchange ideas, engage in political or issue activism, and peacefully protest on the university campus.

Margaret DeWeese-Boyd v. Gordon College, D. Michael Lindsay, and Janel Curry, 163 N.E.3d 1000 (Mass. Sup. Ct. 2021)

In a great win for faculty at religious institutions, and consistent with the AAUP’s arguments in an amicus brief, the Massachusetts Supreme Court held that plaintiff Margaret DeWeese-Boyd is not a minister of defendant Gordon College for the purposes of the First Amendment “ministerial exception” and thus she was entitled to protection by Massachusetts employment laws. The AAUP amicus brief explained why the ministerial exception, which is intended to prevent government intrusion into a religious institution’s relationship with its ministers, does not apply to the typical faculty member like DeWeese-Boyd at a religious college. The court agreed, finding that the “ministerial exception” did not apply because, while Gordon College was a religious institution, DeWeese-Boyd was not a minister based on what “DeWeese-Boyd actually did, and what she did not do” as a faculty member.

Harvard and Massachusetts Institute of Technology v. Department of Homeland Security, No. 1:20-cv-11283 (D.C. MA, July 13, 2020)(amicus brief filed)

Following a legal challenge, supported by an amicus brief in which the AAUP joined, the US Department of Homeland Security (DHS) rescinded a directive that, during the COVID-19 crisis, foreign students engaged entirely in online study would not be allowed in the United States. In March 2020, DHS and Immigration and Customs Enforcement (ICE), issued guidance that, for the duration of the COVID-19 emergency, F-1 and M-1 visa holders were allowed to participate in online education while remaining in the United States. On July 6, 2020, DHS issued a new directive that rescinded this COVID-19 exemption for international students, requiring all students on F-1 visas whose university curricula are entirely online to depart the country and barring any such students currently outside the United States from entering or reentering the United States. Shortly after DHS issued the directive, Harvard University and the Massachusetts Institution of Technology filed a complaint in the US District Court in Massachusetts for declaratory and injunctive relief, to prevent the directive from taking effect so that thousands of international students can continue to participate in educational opportunities in the United States, even if their course of study is online.

Trump v. Hawaii, 138 S. Ct. 2392 (2018)

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.”

McAdams v. Marquette University, 383 Wisc. 2d 358, 914 N.W.2d 708 (2018)

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.

City & Cty. of San Francisco v. Trump, 897 F. 3d 1225 (9th Cir. 2018)

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.

Glass v. Paxton, 900 F. 3d 233 (5th Cir. 2018)

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.

Energy & Environment Legal Institute v. Arizona Board of Regents, Case No. 2CACV-2017-0002 (Ariz. App. Ct., Second App. Div., Sept 14, 2017) (unpublished)

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.

The American Tradition Institute v. Rector & Visitors of the University of Virginia & Michael Mann, 287 Va. 330 (Va. April 17, 2014)

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.

Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014)

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.

Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001)

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.

Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)

Several Virginia public college and university  professors challenged a law that restricted the ability of state employees to access sexually explicit material on state-owned or state-leased computers, alleging that the law interferes with their academic freedom to research and teach.

Schrier v. University of Colorado, 427 F.3d 1253 (10th Cir. 2005)

Dr. Robert Schrier, a tenured faculty member, alleged that university employees terminated his chairmanship in retaliation for his public speech about the financial feasibility of moving a health sciences center. The district court opined that Dr. Schrier's status as a university professor did not entitled him to rights distinctive from those of any other public employees. 

Association of Christian Schools International, et al. v. Roman Stearns, et al., 362 Fed. Appx. 640 (9th Cir. 2010)

The  plaintiffs argued that  the University of California’s admission process ,which evaluated high school courses to ensure they were college preparatory, violated their First Amendment rights. The AAUP’s amicus brief urges the Ninth Circuit to affirm the district court’s decision that the University of California’s admission process is constitutional and emphasizes that faculty involvement in the university’s admissions process is crucial to academic freedom.  

Capeheart v. Terrell, 695 F.3d 681 (7th Cir. 2012)

The AAUP has filed an amicus brief (.pdf) in the U.S. Court of Appeals for the Seventh Circuit in support of Loretta Capeheart, a tenured professor at Northeastern Illinois University (NEIU). Professor Capeheart sued NEIU after the provost disregarded a faculty vote electing Capeheart chair of the Justice Studies Department. Capeheart alleges that the provost refused to appoint her to the position in retaliation for her advocating on behalf of two students who were arrested by campus police while protesting CIA recruiters at the university’s job fair. Capeheart further claims that she was retaliated against because she made statements at a campus event, featuring the provost, blaming excessive administrative spending for budget problems that she claimed led to a low number of Latino faculty. In her lawsuit, Capeheart argues that the provost’s decision is in retaliation for this advocacy and speech and, therefore, NEIU has violated her First Amendment speech rights.

Adams v. University of North Carolina–Wilmington, 640 F.3d 550 (4th Cir. 2011)

Tenured Professor Michael Adams sued the University of North Carolina-Wilmington after he was denied a promotion, alleging this denial was retaliation for his political speech and his speech criticizing the school.  The AAUP, the Thomas Jefferson Center for the Protection of Free Expression, and the Foundation for Individual Rights in Education filed an amicus brief in the Fourth Circuit supporting Professor Adams.

Sussex Commons Associates, LLC v. Rutgers, 416 N.J. Super. 537 (App.Div. 2010)

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.  

Cuccinelli v. Rector & Visitors of the University of Virginia, 283 Va. 420 (2010)

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.)

Ward Churchill v. University of Colorado at Boulder, 293 P.3d16 (61. App. 2010) aff'd 285 P.3d 986 (Col. 2012)

In a jury trial in the Colorado District Court in Denver, a jury found that Churchill’s protected speech – his controversial writings about September 11 – was a substantial or motivating factor for the Board of Regents’ decision to discharge him from his tenured position. The district judge overturned the jury’s verdict and ruled in favor of the Regents as a matter of law.  On February 18, 2010, the AAUP joined the ACLU and the National Coalition Against Censorship in filing an amicus brief in support of the appeal by Professor Ward Churchill to the Colorado State Court of Appeals. 

Hong v. Grant, 403 Fed.Appx. 236 (9th Cir. 2010)

Juan Hong, a tenured professor at University of California-Irvine, criticized a number of decisions about hiring, promotions, and staffing at the school of engineering and was later denied a merit raise.  The Ninth Circuit Court affirmed a federal district court decision that rejected a faculty member’s First Amendment retaliation claim against his administration by applying Garcetti in a university context

ASA, AAUP, AAADC, BCPR, and Habib v. Secretaries of Homeland Security and State, 588 F. Supp. 2d 166 (D. Mass. 2008)

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.

John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008 )

The plaintiffs, an internet service provider and others challenged the constitutionality of National Security Letters and their accompanying “gag orders.”  

ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007 )

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. 

Garcetti v. Ceballos, 547 U.S. 410 (2006)

The United States Supreme Court ruled that a public employee does not receive First Amendment protection when speech is made pursuant to his or her official duties.  The AAUP and the Thomas Jefferson Center for the Protection of Free Expression submitted a brief that opposed the official duties standard, but also made a separate claim cautioning the troubling implications for academic speech at public institutions. Fortunately, the Court refrained from applying their analysis to academic speech, noting that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”

Crue v. Aiken, 204 F. Supp. 2d 1130 (C.D. Ill. 2002); Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004 )

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.

Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)

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.