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  • Ward Churchill v. University of Colorado at Boulder, 293 P.3d16 (61. App. 2010) aff'd 285 P.3d 986 (Col. 2012) | AAUP
    verdict and ruled in favor of the Regents as a matter of law Ruling The District Court first found that the Board of Regents cannot be legally sued because they are comparable to a neutral body that hears appeals much like a parole board or school board The court found that because the Regents were immune from Churchill s claims the Board could not be forced to reinstate Churchill to his tenured professorship nor could they be forced to pay Churchill damages The court also found irrespective of the Board s immunity that reinstatement was an inappropriate remedy The court reasoned that the jury s award of nominal damages indicated that Churchill suffered no actual damages that reinstatement would result in interference in the academic process that the relationship between the parties was irreparably damaged and that his reinstatement would cause harm to third parties Churchill promptly appealed Amicus Brief The joint amicus brief filed by the AAUP ACLU and NCAC argues that the judge should not have overturned the jury s verdict that Churchill s First Amendment rights were violated and that the only reasonable remedy for his termination was reinstatement to his former position First with respect to the award of quasi judicial immunity to the Board of Regents courts generally grant such immunity only when the decision making body is neutral and independent from the underlying dispute The Board of Regents was however the employer here not a neutral judicial body Additionally the Board of Regents in Colorado is an elected body making it difficult for them to be neutral when reviewing a highly politicized employment situation The courtss decision to grant immunity to the Regents would in essence make it impossible for Colorado faculty members to sue where their employment had been affected as a result of their exercise of constitutionally protected rights The amicus brief also argues that the court abused its discretion when it held that Churchill was not entitled to reinstatement The brief argues that a professor who is terminated because of his or her protected speech should be reinstated to his or her former position Because the jury found that Churchill was fired due to his protected speech the judge should have ordered the University of Colorado to reinstate him to vindicate his First Amendment rights Furthermore although deference to faculty committee decisions is generally appropriate the faculty committee s determination that Churchill engaged in academic misconduct should not have influenced the judge s decision because the jury explicitly found that the Board of Regents still would not have fired him in the absence of his protected speech In addition a majority of the Privilege and Tenure Committee did not recommend that Churchill be terminated Lastly the brief argues that although animosity may exist between the University and Churchill it is not unusual or even necessarily unhealthy for members of the university community to disagree on matters of significance and normal disharmony between members of a campus community should not prevent reinstatement

    Original URL path: http://www.aaup.org/brief/ward-churchill-v-university-colorado-boulder-293-p3d16-61-app-2010-affd-285-p3d-986-col-2012 (2016-02-13)
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  • Hong v. Grant, 403 Fed.Appx. 236 (9th Cir. 2010) | AAUP
    of professors After Dr Hong was denied a merit salary increase he filed suit against the university for violating his First Amendment right to free speech The U S District Court for the Central District of California rejected Dr Hong s claim finding in favor of the university The judge reviewed the Supreme Court s decision in Garcetti v Ceballos 547 U S 410 2006 see discussion above and concluded that because Dr Hong was purportedly acting pursuant to his official duties which included participation in faculty governance he could not avail himself of First Amendment protection if his employer retaliated against him based on his expression of opposition to the university s policy According to the court the University of California Irvine commissioned Mr Hong s involvement in the peer review process and his participation is therefore part of his official duties as a faculty member The University is free to regulate statement made in the course of that process without judicial interference In so holding the court failed to acknowledge the fact that courts treat the speech of professors in an academic context differently than the speech of employees of public agencies in other contexts and that the Garcett i decision explicitly set aside the question of academic speech The amicus brief focuses on the unique status granted to academic speech including involvement in shared governance The brief notes that academic speech has been accorded special First Amendment protection by the Supreme Court starting with Sweezy v State of New Hampshire 354 U S 234 1957 Frankfurter J concurring through Keyishian v Board of Regents 385 U S 589 1967 and Grutter v Bollinger 539 U S 306 2003 and argues that such protection must include the right of faculty to participate in shared governance The hallmark of

    Original URL path: http://www.aaup.org/brief/hong-v-grant-403-fedappx-236-9th-cir-2010 (2016-02-13)
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  • Garcetti v. Ceballos, 547 U.S. 410 (2006) | AAUP
    California deputy district attorney Richard Ceballos who suspected that a deputy sheriff had included false statements in a search warrant affidavit Ceballos told his supervisors and the defense attorney in the case about his suspicions and he claims he was demoted and transferred in retaliation for speaking out on a matter of public concern He sued his supervisors including Gil Garcetti A lower court dismissed the claim ruling that Ceballos s speech was not protected by the First Amendment because it occurred in a memorandum to his supervisors as part of his job An appeals court overturned that ruling and found that Ceballos speech was protected While the case does not involve a faculty member the legal issue raised may have significant implications for the academic speech of the professoriate In its brief which was written by The Thomas Jefferson Center for the Protection of Free Expression the AAUP and the Center argued that if speech related to employment is not protected by the First Amendment there could be deeply troubling implications for faculty academic speech at public institutions Read the final amicus brief pdf Update On May 30 2006 the Supreme Court reversed and remanded the Ninth Circuit s holding in a 5 4 decision authored by Justice Kennedy The opinion held that when public employees make statements pursuant to their official duties the employees are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline regardless of whether the speech implicates matters of public concern The Court rejected the notion that the First Amendment requires the Court to balance the competing interests of a government employee and employer when the employee is performing his or her job duties concluding that under those circumstances the government s interest in efficiency

    Original URL path: http://www.aaup.org/brief/garcetti-v-ceballos-547-us-410-2006 (2016-02-13)
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  • McEnroy v. St. Meinrad Sch. of Theol., 713 N.E.2d 334 (Ind. Ct. App. 1999) | AAUP
    Teaching Evaluation Tenure Women in Higher Education Reports Publications AAUP Policies Reports Academe Economic Status Report Compensation Survey Bulletin of the AAUP The Redbook Journal of Academic Freedom AAUP Bookstore News AAUP in the News AAUP Updates For the Media Get Involved Upcoming Events Local Toolkit Issue Campaigns Find Chapters Conferences Start a Chapter I Need Help With Workplace Issues Understanding Terms and Abbreviations Responding to Financial Crisis You are here Home McEnroy v St Meinrad Sch of Theol 713 N E 2d 334 Ind Ct App 1999 This case involved the dismissal of a tenured faculty member from the Saint Meinrad School of Theology who signed an open letter to the Pope asking that continued discussion be permitted concerning the question of ordaining women to the priesthood Dr McEnroy signed the open letter as a private citizen but was fired for public dissent and sued the institution for breach of contract AAUP censured Saint Meinrad on due process and academic freedom grounds triggered by Dr McEnroy s dismissal AAUP filed an amicus brief in July 1998 arguing that the professor s dismissal violated the institution s own policies and emphasizing the importance of academic freedom and due process rights

    Original URL path: http://www.aaup.org/brief/mcenroy-v-st-meinrad-sch-theol-713-ne2d-334-ind-ct-app-1999 (2016-02-13)
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  • Point Park University v. Newspaper Guild of Pittsburgh/Communication Workers of America Local 38061, AFL-CIO, CLC, N.L.R.B. Case No.: 06-RC-012276 (Private Institute Faculty Organizing). | AAUP
    by the National Labor Relations Act or are excluded managers Point Park University faculty members petitioned for an election and voted in favor of representation by the Communications Workers of America Local 38061 However the university challenged the decision to hold the election claiming that the faculty members were managers and therefore ineligible for union representation AAUP submitted an amicus brief in July 2012 urging the NLRB to develop a legal definition of employee status in a manner that accurately reflects employment relationships in universities and colleges and that respects the rights of college and university employees to exercise their rights to organize and engage in collective bargaining 1 AAUP s brief stressed the extent to which the erosion of faculty power that union advocates at Point Park have cited reflects broad trends The application of a corporate model of management has resulted in significant changes in university institutional structure and distribution of authority There has been a major expansion of the administrative hierarchy which exercises greater unilateral authority over academic affairs the brief states AAUP also points out that This organizational structure stands in stark contrast to the Yeshiva majority s description of the university as a collegial institution primarily driven by the internal decision making authority of its faculty Further university administrators increasingly are making decisions in response to external market concerns rather than consulting with relying on or following faculty recommendations Thus university decision making is increasingly made unilaterally by high level administrators who are driven by external market factors in setting and implementing policy on such issues as program development or discontinuance student admissions tuition hikes and university industry relationships As a result the faculty have experienced a continually shrinking scope of influence over academic matters In addition to AAUP s brief amicus briefs were filed

    Original URL path: http://www.aaup.org/brief/point-park-university-v-newspaper-guild-pittsburghcommunication-workers-america-local-38061 (2016-02-13)
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  • Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) | AAUP
    district court ruled in favor of the professors and the Commonwealth appealed to the Fourth Circuit AAUP and The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia filed a friend of the court brief with the Fourth Circuit in June 1998 arguing that the law violates the academic freedom of professors by inhibiting their use of the Internet as a teaching and research tool A three judge panel of the Fourth Circuit ruled in February 1999 that the state law that prohibits the use of state owned computers to view sexually explicit material does not violate the First Amendment That court decision failed to address the academic freedom concerns of faculty members in higher education institutions In early June the Fourth Circuit granted the professors motion for a hearing before the full court In June 2000 the Fourth Circuit in a 8 4 decision ruled that the regulation of state employees access to sexually explicit material in their capacity as employees on computers owned or leased by the state is consistent with the First Amendment In so doing the majority of the court asserted that academic freedom for individual professors is merely a professional norm not a constitutional right As Chief Judge Wilkinson who concurred in the judgment only but dissented from the majority s reasoning wrote the majority accords the speech and research of state employees including those in universities no First Amendment protection whatsoever He continued I offer no apology for believing along with the Supreme Court in the significant contribution made to society by our colleges and universities I fear the court forgets that freedom of speech belongs to all Americans and that the threat to the expression of one sector of society will soon enough become a danger to the

    Original URL path: http://www.aaup.org/brief/urofsky-v-gilmore-216-f3d-401-4th-cir-2000 (2016-02-13)
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  • Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) | AAUP
    are here Home Jackson v Birmingham Board of Education 544 U S 167 2005 In June 2004 the United States Supreme Court granted certiorari in this case The issue before the Court is whether Title IX of the Education Amendments which prohibits discrimination in federally assisted education programs and activities provides for a retaliation cause of action The petition was filed by Roderick Jackson a high school basketball coach who was allegedly removed from this position in retaliation for complaining about his all girl team being denied equal funding and access to sports facilities and equipment The AAUP joined a variety of coach associations in signing onto an amicus brief written by the National Education Association The amici argue in the brief that the enforcement of Title IX would be seriously compromised if educators who play an essential role in enforcing Title IX could be subjected to retaliation without redress when they seek to correct violations of the law The amici also contend that Congress intent that Title IX provide individual citizens effective protection would be undermined if educators were not protected from retaliation for raising Title IX concerns Read the amicus brief pdf Status On March 29 2005 the U S Supreme Court ruled in a 5 4 decision that Title IX provides for a retaliation cause of action The Court reasoned that if Title IX s private right of action does not encompass retaliation claims the teacher would have no recourse if he were subsequently fired for speaking out Without protection from retaliation individuals who witness discrimination would likely not report it indifference claims would be short circuited and the underlying discrimination would go unremedied The Court emphasized that teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students

    Original URL path: http://www.aaup.org/brief/jackson-v-birmingham-board-education-544-us-167-2005 (2016-02-13)
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  • Point Park Univ. v. NLRB, 457 F.3d 42 (D.C. Cir. 2006) | AAUP
    Review Retirement Sexual Diversity Gender Identity Teaching Evaluation Tenure Women in Higher Education Reports Publications AAUP Policies Reports Academe Economic Status Report Compensation Survey Bulletin of the AAUP The Redbook Journal of Academic Freedom AAUP Bookstore News AAUP in the News AAUP Updates For the Media Get Involved Upcoming Events Local Toolkit Issue Campaigns Find Chapters Conferences Start a Chapter I Need Help With Workplace Issues Understanding Terms and Abbreviations Responding to Financial Crisis You are here Home Point Park Univ v NLRB 457 F 3d 42 D C Cir 2006 In May 2012 the National Labor Relations Board invited briefs from interested parties on the question of whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managers In the Point Park University decision faculty members petitioned for an election and voted in favor of representation by the Communications Workers of America Local 38061 However the university challenged the decision to hold the election claiming that the faculty members were managers and therefore ineligible for union representation In its amicus brief submitted to the NLRB in June 2012 the AAUP stressed the extent to which the erosion of faculty power that union advocates at Point Park have cited reflects broad trends The application of a corporate model of management has resulted in significant changes in university institutional structure and distribution of authority There has been a major expansion of the administrative hierarchy which exercises greater unilateral authority over academic affairs the AAUP brief states It adds This organizational structure stands in stark contrast to the Yeshiva majority s description of the university as a collegial institution primarily driven by the internal decision making authority of its faculty Further university administrators increasingly are making decisions in response to

    Original URL path: http://www.aaup.org/brief/point-park-univ-v-nlrb-457-f3d-42-dc-cir-2006 (2016-02-13)
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