Academic Freedom

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.

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.

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a legal challenge, supported by an amicus brief in which the AAUP joined, the US Department of Homeland Security (DHS) rescinded a directive that, during the COVID-19 crisis, foreign students engaged entirely in online study would not be allowed in the United States.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 On July 6, 2020, DHS issued a new directive that rescinded this COVID-19 exemption for international students, requiring all students on F-1 visas whose university curricula are entirely online to depart the country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.

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.

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.

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.

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.

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. 

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.

Professor Sadid alleged that Idaho State University retaliated against him because of his comments criticizing the administration that had been published in a local newspaper over several years. 

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.)

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

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

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.”