The AAUP in the Courts

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.”

Note: A fuller discussion of this topic may be found in the January-February issue of Academe in “The AAUP in the Courts”, an essay by Robert M. O’Neil.

One thought on “The AAUP in the Courts

  1. This elegant article gives spacious treatment to the Robin Meade case: another Illinois case in the state that is ground zero in the academic freedom battles. It was Illinois Committee A that first brought this matter to the attention of Academe on November 4, 2014 the firing of an adjunct union president who dared to criticize her community college: Moraine Valley. Robin is seeking AAUP legal support and we are confident that will be forthcoming along with a statement from the AAUP:

    On the last day of October, 2014, the federal appeals court for the Seventh Circuit (based in Chicago) dramatically expanded the scope of academic freedom and expression for adjuncts and part-time faculty as well as full-time senior professors. This quite unexpected (and unanimous) ruling greatly enhanced recently established constitutional protection for outspoken critics of public college and university administrators. It reinforced and enhanced recent and congenial decisions in two other federal circuits in cases from Washington (Demers) and North Carolina (Adams). The court specifically relied on a sympathetic view of the Supreme Court’s judgment in the Garcetti case, expressly invoking the justices’ “reservation” of free speech and press protections for academic speakers and writers. The three-judge panel unanimously declared that an Illinois community college could not summarily dismiss an adjunct teacher for criticizing the administration, at least as long as the issues she had raised publicly and visibly constituted “matters of public concern.”

    The federal appeals court also noted that even a contingent or part-time teacher had a reasonable expectation of continuing employment at the institution. The appellate court for the Seventh Circuit ruled in a sympathetic opinion that Robin Meade, the outspoken critic and active union officer, was “not alone in expressing concern about the treatment of adjuncts.” The panel added that “colleges and universities across the country are targets of increasing coverage and criticism regarding their use of adjunct faculty.” In this regard, the court broke important new ground not only with regard to academic freedom and professorial free expression, but even more strikingly in its novel embrace of the needs and interests of adjuncts and part-timers. Given the consistency of the recent views of other federal appellate courts, Supreme Court intervention seems most unlikely.

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