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  • Tenure | AAUP
    Appeal contesting a ruling by a California state court judge that found that California statutes providing tenure protections to K 12 teachers violated the equal protection provisions of the California constitution The case arose from a challenge funded by anti union organizations to five California statutes that provide primary and secondary school teachers a two year probationary period stipulate procedural protections for non probationary teachers facing termination and emphasize teacher seniority in reductions of force The trial court judge held that the statutes unconstitutionally impact students constitutional right to equality of education and disproportionately burden poor and minority students The amicus brief contesting this decision argued that the challenged statutes help protect teachers from retaliation help keep good teachers in the classroom by promoting teacher longevity and discouraging teacher turnover and allow teachers to act in students interests in presenting curricular material and advocating for students within the school system Read more about Vergara et al v State of California et al and California Teachers Association and California Federation of Teachers Case No BC484642 Calif Superior Ct Los Angeles June 10 2014 appeal filed Case No B258589 Calif App Ct Second App Dist Kant v Lexington Theological Seminary No 2912 SC 000502 DG 2014 Ky LEXIS 160 Ky April 17 2014 The Kentucky Supreme Court recently issued two decisions strongly affirming the rights of tenured faculty members at religious institutions and echoing arguments made by AAUP in an amicus brief filed with the court In two companion cases the Kentucky Supreme Court ruled that religious institutions are generally bound by tenure contracts including faculty handbooks and that faculty members may sue if these contracts are breached even in some instances in which the faculty member is a minister Read more about Kant v Lexington Theological Seminary No 2912 SC 000502

    Original URL path: http://www.aaup.org/our-work/legal-program/amicus-briefs/tenure (2016-02-13)
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  • Energy & Environment Legal Institute v. Arizona Board of Regents, Case No. 2CACV-2015-0086 (Ariz. App. Ct., Second App. Div., Dec. 3 2015) (unpublished) remanding Case No. C2013-4963, (Ariz. Sup. Ct., Pima County, March 24, 2015) | AAUP
    case arose from a public records request for extensive material from two climate scientists submitted by a legal foundation seeking to use records requests in an attempt to put false science on trial The AAUP filed an amicus brief with the Arizona Court of Appeals and earlier with the trial court arguing that academic freedom to conduct research is essential to a vital university system and to the common good and warranted protecting certain research records from disclosure link to brief on case page This case arose from a lawsuit filed by Energy Environment Legal Institute a free market legal foundation using public records requests in a campaign against climate science E E previously known as the American Tradition Institute brought similar cases involving public records requests of faculty members including in the case of American Tradition Institute v Rector and Visitors of the University of Virginia 756 S E 2d 435 Va 2014 in which the AAUP filed an amicus brief successfully opposing the ATI records request E E submitted public records requests that targeted two University of Arizona faculty members climate researchers Professors Malcolm Hughes and Jonathan Overpeck E E sought emails authored by or addressed or copied to them The emails were in turn linked to eight other individuals each of whom is or was then a professor or researcher at another private or public university As E E counsel has stated the suit is supposedly intended to put false science on trial and E E vows to keep peppering universities around the country with similar requests under state open records laws The case was originally heard by the Superior Court in Pima County Arizona in late 2014 The AAUP filed an amicus brief in the lower court on September 25 2014 The brief argued when public records requests target information that implicates principles of academic freedom courts must balance the public s general right to disclosure against the significant chilling effects that will result from forcing scholars and institutions to disclose collegial academic communications and internal deliberative materials On March 24 2015 the court ruled that the University did not have to disclose the records The decision noted that the argument regarding the potential chilling effect of the disclosures was key to the decision E E appealed this decision to the Arizona Court of Appeals On October 23 2015 the AAUP filed a brief in support of the University and the scientists The brief was drafted by AAUP General Counsel Risa Lieberwitz with input from AAUP Litigation Committee members local Arizona Counsel Don Awerkamp and others The brief argued that academic freedom warranted protecting the research records from disclosure One key consideration under Arizona law is whether disclosure is in the best interests of the state The brief explained that Courts should consider the best interests of the state to maintain a free and vital university system which depends on the protection of academic freedom to engage in the free and open scientific debate necessary to

    Original URL path: http://www.aaup.org/brief/energy-environment-legal-institute-v-arizona-board-regents-case-no-2cacv-2015-0086-ariz-app-ct (2016-02-13)
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  • Fisher v. University of Texas at Austin et. al., 135 S. Ct. 2888 (2015) | AAUP
    Abigail Fisher a white student challenged the university s consideration of race in the undergraduate admissions process when she was denied admission Fisher argued that UT Austin s use of race in admissions decisions violated her right to equal protection under the Fourteenth Amendment In 1996 the Texas Legislature adopted the Top 10 Percent Law Under this law seniors in the top 10 percent of their high school class were guaranteed admission to any Texas state university The primary objective of the law is to draw in the best students from each Texas school including students from predominantly black or Hispanic areas in order to achieve higher levels of diversity Following the Supreme Court upholding a race conscious admissions program at the University of Michigan Law School in Grutter v Bollinger 539 U S 244 2003 UT Austin reinstated a consideration of race in admissions decisions for those who didn t fall within the Top 10 Percent Law Fisher filed a lawsuit challenging UT Austin s decision to deny her admission The case was first heard by the Fifth Circuit Court of Appeals in 2010 and the AAUP signed onto the American Council on Education ACE amicus brief submitted to the Fifth Circuit The Fifth Circuit ruled in favor of UT Austin and the Fifth Circuit s first decision was appealed to the Supreme Court in 2012 In that appeal the question presented was whether the Supreme Court s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment including Grutter permitted UT Austin s use of race in undergraduate admissions decisions Fisher claimed that either this use of race did not fall into the constitutional parameters of Grutter or that Grutter must be overturned In August 2012 the AAUP signed onto an amicus brief authored by ACE with 37 other higher education groups The brief argued that the educational benefits that come from a diverse student body are a compelling state interest and second colleges and universities must be allowed to make autonomous decisions when determining the composition of their student bodies On June 24 2013 by a vote of 7 to 1 the Supreme Court followed longstanding precedent and recognized that colleges and universities have a compelling interest in ensuring student body diversity and can take account of an individual applicant s race as one of several factors in their admissions program as long as the program is narrowly tailored to achieve that compelling interest Fisher v University of Texas at Austin 133 S Ct 2411 2013 Fisher I The Supreme Court however ruled that the court below had not properly applied the strict scrutiny standard and remanded the case back to the Fifth Circuit In November 2013 the AAUP again signed onto ACE s amicus brief to the Fifth Circuit which reiterated the arguments enumerated above In July 2014 for the second time the Fifth Circuit upheld the UT Austin admissions plan Fisher v Univ of Tex at Austin 758 F 3d 633 5th Cir 2014 Fisher

    Original URL path: http://www.aaup.org/brief/fisher-v-university-texas-austin-et-al-135-s-ct-2888-2015 (2016-02-13)
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  • Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014) | AAUP
    taught journalism and mass communications studies at the university in the Edward R Murrow School of Communication Starting in 2008 Demers took issue with certain practices and policies of the School of Communication Demers began to voice his criticism of the college and authored two publications entitled 7 Step Plan for Improving the Quality of the Edward R Murrow School of Communication and The Ivory Tower of Babel Demers sued the university and claimed that the university retaliated against him by lowering his rating in his annual performance evaluations and subjected him to an unwarranted internal audit in response to his open criticisms of administration decisions and because of his publications The district court dismissed Demers First Amendment claim on the ground that Demers made his comments in connection with his duties as a faculty member Unlike most recent cases involving free speech infringement at public universities the district court s analysis did not center on the language from Garcetti v Ceballos 547 U S 410 2006 Instead the court applied a five part test set out by the Ninth Circuit in a series of public employee speech cases and found that Demers was not speaking as a private citizen on matters of public concern Therefore the district court found his speech was not protected by the First Amendment Demers appealed to the Ninth Circuit The AAUP joined with the Thomas Jefferson Center for the Protection of Free Expression to file an amicus brief in support of Demers The amicus brief argued that academic speech was not governed by the Garcetti analysis but instead was governed by the balancing test established in Pickering v Board of Education 391 US 563 1968 In two opinions the Ninth Circuit agreed and issued a ruling that vigorously affirmed that the First Amendment protects the academic speech of faculty members In an initial opinion issued on September 4 2013 the Ninth Circuit held that Garcetti did not apply to teaching and writing on academic matters by teachers employed by the state even when undertaken pursuant to the official duties of a teacher or professor Demers v Austin 729 F 3d 1011 September 4 2013 Instead as argued in the amicus brief the court held that academic employee speech on such matters was protected under the Pickering balancing test The court found that the pamphlet prepared by Demers was protected as it addressed a matter of public concern but remanded the case for further proceedings The University filed a petition for panel rehearing and a petition for rehearing en banc On January 29 2014 the U S Court of Appeals for the Ninth Circuit issued an opinion denying the petition for panel rehearing and the petition for rehearing en banc and withdrawing and modifying its previous opinion Originally the court held that teaching and writing on academic matters by publicly employed teachers could be protected by the First Amendment because they are governed by Pickering v Board of Education not by Garcetti v Ceballos In

    Original URL path: http://www.aaup.org/brief/demers-v-austin-746-f3d-402-9th-cir-wash-jan-29-2014 (2016-02-13)
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  • Capeheart v. Terrell, 695 F.3d 681 (7th Cir. 2012) | AAUP
    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 Relying on the Supreme Court s 2006 decision in Garcetti v Ceballos the district court dismissed Capeheart s case ruling that her statements and advocacy were not protected because the speech at issue was made pursuant to Capeheart s professional responsibilities In addition to taking a very broad view of what are a faculty member s official duties the district court also refused to recognize an exception in the Garcetti decision specific to speech made by faculty at public colleges and universities saying that since Garcetti courts have routinely held that even the speech of faculty members of public universities is not protected when made pursuant to their professional duties The district court concluded therefore that Capeheart s speech regarding military and CIA recruiting on campus and the university s treatment of student protesters is not protected under the First Amendment Capeheart has appealed the District Court s decision to the Court of Appeals for the Seventh Circuit The AAUP s amicus brief in support of Capeheart argues that the district court arrived at its distressing resolution of Professor Capeheart s First Amendment claim by misapplying Garcetti s official duties analysis and disregarding the express limits of Garcetti s holding and urges the appellate court to overturn the district court s holding The intent of AAUP s brief is to highlight the academic freedom and First Amendment issues implicated by the case and to

    Original URL path: http://www.aaup.org/brief/capeheart-v-terrell-695-f3d-681-7th-cir-2012 (2016-02-13)
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  • Adams v. University of North Carolina–Wilmington, 640 F.3d 550 (4th Cir. 2011) | AAUP
    therefore not be entitled to First Amendment protection under Garcetti The amicus brief argues that the district court s holding incorrectly ignored Garcetti s academic freedom reservation and it urges the Fourth Circuit to recognize an exception to Garcetti s analysis for faculty speech While applauding the district court s deference to promotion and tenure decisions made by faculty committees which it noted judges should review with great trepidation consistently applying reticence and restraint the brief argues that the court failed to consider the consequences its broad ruling could have for academic freedom The court s suggestion that all materials in a promotion packet should automatically be treated as having been created pursuant to that professor s official duties could leave broad swaths of faculty members work unprotected from retaliation Such reasoning could significantly chill faculty speech threatening the vital role that academic speech plays in society and the corresponding role universities play as centers for debate and discovery Because of this societal role as well as the practical differences between the official duties of faculty members and other public employees the brief further argues that the Garcetti official duties analysis should never be applied to faculty members Update On April 6 2011 the Fourth Circuit issued a ringing endorsement pdf of the First Amendment rights of faculty members at public colleges and universities After acknowledging that courts should engage in only limited review of academic employment decisions the Fourth Circuit concluded that the district court had misread Garcetti The court first held that because Professor Adams columns and other materials were protected by the First Amendment when he wrote them they could not be transformed into unprotected speech when he included them in his application for promotion The appeals court then explained that Garcetti would not apply in the academic context of a public university as represented by the facts of this case The court noted that the majority s decision in Garcetti explicitly left open how the official duties analysis would apply in the academic genre where issues of scholarship or teaching are in play The court therefore held that a pplying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment That would not appear to be what Garcetti intended nor is it consistent with our long standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment In light of the above factors we will not apply Garcetti to the circumstances of this case The Fourth Circuit next took up the university s argument that because Adams was an associate professor and because that position obligated him to engage in scholarship research and service to the community Adams was essentially employed to undertake the speech in question thereby rendering it unprotected under Garcetti Rejecting that assertion the court

    Original URL path: http://www.aaup.org/brief/adams-v-university-north-carolina%E2%80%93wilmington-640-f3d-550-4th-cir-2011 (2016-02-13)
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  • Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) | AAUP
    Workload Family Work Grading Graduate Students The Academic Bill of Rights Minority Serving Institutions Post Tenure 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 Kincaid v Gibson 236 F 3d 342 6th Cir 2001 In September 1999 a divided three judge panel of the Sixth Circuit ruled that no First Amendment violation resulted from a college administration s ban on the distribution of a student created college yearbook based on its cover and contents The majority ruled that the yearbook was not a public forum and that the university had a right to approve its content before distributing it In May 1998 AAUP submitted an amicus brief with the Thomas Jefferson Center for the Protection of Free Expression and the national Kentucky American Civil Liberties Union ACLU arguing that the administration s actions violated the students First Amendment right to publish the yearbook which was under student editorial control Status In January 2001 the full Sixth Circuit ruled in a 10 3 decision that the University administration violated the First Amendment rights of the student editors The court found the yearbook to be a limited public forum The court found i t difficult to conceive of a forum whose nature is more compatible with expression than the yearbook The court ruled that t he university s confiscation of the journal of expression was arbitrary and unreasonable and ranks with forced

    Original URL path: http://www.aaup.org/brief/kincaid-v-gibson-236-f3d-342-6th-cir-2001 (2016-02-13)
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  • Columbia Union College v. Clarke, 988 F. Supp. 897 (D. Md. 1997); Columbia Union College v. Oliver, 254 F.3d 496 (4th Cir. 2001) | AAUP
    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 Columbia Union College v Clarke 988 F Supp 897 D Md 1997 Columbia Union College v Oliver 254 F 3d 496 4th Cir 2001 This case involved state funding for religious institutions and the use of academic freedom as a standard to determine whether an institution is so pervasively sectarian as to be ineligible for state funding In 1990 Columbia Union College applied to the State of Maryland for funding under the state s Joseph A Sellinger Program However Columbia Union is controlled by the Seventh day Adventist Church and the Sellinger program funds may not be used for sectarian purposes such as religious worship or religious instruction In a 1996 ruling the federal district court determined that Columbia Union was too pervasively sectarian to be eligible for Sellinger Program funds The College appealed this decision however and the U S Court of Appeals for the Fourth Circuit ordered the lower court to reconsider On reconsideration the lower court reversed its earlier ruling finding that while CUC is controlled by the Seventh Day Adventist Church the primary goal and function of CUC is to provide a secular education even though it has a definite and strong secondary goal to teach with a Christian vision In reaching this conclusion the court misapplied AAUP s policy on religious institutions limitations on academic freedom The court rightly looked to AAUP s 1940 Statement of Principles on Academic Freedom and Tenure but incorrectly concluded that the 1940 Statement allowed essentially any restrictions on academic freedom as long as they were communicated to faculty members at the time of hiring The State

    Original URL path: http://www.aaup.org/brief/columbia-union-college-v-clarke-988-f-supp-897-d-md-1997-columbia-union-college-v-oliver-254 (2016-02-13)
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