In the January–February 2015 Academe issue, Robert O’Neil explores the AAUP’s foray into the federal courts over the last century and the resulting impact the Association has had in shaping the law of higher education.
In his article, “The AAUP in the Courts,” O’Neil demonstrates the major role the AAUP has played in shaping the law of higher education since the late 1950s by filing amicus briefs in carefully selected cases—particularly on issues relating to academic freedom.
During the first half century of the AAUP’s existence, the association relied almost exclusively on issuing statements of policy and conducting investigations of potential violations of academic freedom. While the efforts received media attention and helped to shape the way that faculty viewed their larger role and stature in higher education, they had little effect on federal law.
As O’Neil explains, this approach changed during the mid-1950’s when the AAUP’s general secretary believed that a more direct approach was needed to inject the AAUP’s voice into the court system:
In 1956, then-general secretary Ralph Fuchs, a senior law professor at Indiana University and a widely recognized champion of academic freedom, initiated discussion about the possibility of the AAUP’s submitting legal briefs as a “friend of the court.” As the seventy-fifth-anniversary article explained, “in carefully selected cases the Association could urge the court to apply its recommended policies.” Such a novel approach would soon prove “a fruitful one [since] the United States Supreme Court and other federal and state courts have expressly referenced AAUP policies in various decisions.” Two years later the first such brief was filed in the nation’s highest court on behalf of Lloyd Barenblatt, a University of Michigan teaching fellow who had refused to answer questions posed to him by the House Un-American Activities Committee (HUAC). Thus emerged a major new strategy in the protection of academic freedom and free expression.
While the AAUP initially issued amicus briefs in cases relating to issues of academic freedom, the ensuing decades have seen the association file briefs in cases which involved issues such as tenure, discrimination, affirmative action, sexual harassment, court-ordered access to public records and governmental proceedings, intellectual property, and expanded scholarly access to inventions and research materials.
As O’Neil notes at the end of his piece, “The frequent success of the organization’s program of legal advocacy, and specifically its use of amicus briefs to shape the law, has demonstrated the brilliant prescience of Ralph Fuchs’s proposal in 1956, and the important achievements in this area are a great source of pride as the Association commemorates its centennial.”