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  • Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) | AAUP
    Crisis You are here Home Rumsfeld v Forum for Academic Institutional Rights Inc 547 U S 47 2006 This case involves the Solomon Amendment a federal law requiring that schools allow the military full access to recruiting on campus even though the military does not comply with the schools policies against aiding any employer who discriminates on the basis of sexual orientation The Solomon Amendment punishes universities with a loss of federal funding if the university or any individual component thereof excludes military recruiters from campus Because the Solomon Amendment puts the schools and their faculty in the position of violating their own policies regarding discrimination on the basis of sexual orientation or risking millions of dollars in federal funding throughout the institution a coalition of law schools came together as the Forum for Academic and Institutional Rights FAIR for the specific purpose of challenging this law The plaintiffs argue that the Solomon Amendment violates their First Amendment rights to academic freedom free speech and freedom of association The Yale University faculty and University of Pennsylvania faculty have also brought individual cases making similar arguments and other individual law schools are also considering filing cases in different circuits around the country See below On September 21 2005 the AAUP filed its amicus brief in this case before the U S Supreme Court The brief written by Kathleen M Sullivan a constitutional law professor and former dean of Stanford Law School argues that the current version of the Solomon Amendment interferes with the First Amendment rights of individual faculty academic freedom and the faculty s collective academic governance The brief further contends that by requiring equal rather than adequate access for military recruitment the Solomon Amendment improperly discriminates based on the viewpoint of faculty Lastly the brief argues that by withdrawing

    Original URL path: http://www.aaup.org/brief/rumsfeld-v-forum-academic-institutional-rights-inc-547-us-47-2006 (2016-02-13)
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  • Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014) | AAUP
    it effectively prevented Michigan s public higher education institutions or their boards from revisiting this issue except by repeal or modification of the Michigan Constitution The plaintiffs respondents contend that the Michigan constitutional amendment violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution In March 2008 a federal district court ruled that the amendment was constitutional and the plaintiffs appealed to the Sixth Circuit Court of Appeals In July 2011 a panel of the Sixth Circuit Court of Appeals reversed the district court s ruling holding that the portions of the amendment that affect Michigan s public higher education institutions impermissibly alter the political process in violation of the Equal Protection Clause The Sixth Circuit granted Michigan Attorney General Bill Schuette s petition for an en banc review of the panel s decision and in November 2012 the Sixth Circuit in a remarkably divided opinion reversed the district court s judgment finding the provisions of the amendment affecting Michigan s public higher education institutions are unconstitutional The Supreme Court of the United States granted Schuette s petition for writ of certiorari in March 2013 The issue before the Supreme Court was w hether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex based discrimination or preferential treatment in public university admissions decisions Schuette argued that because Section 26 of the Michigan Constitution lacks discriminatory intent it is not a racial classification and thus the Equal Protection Clause and political restructuring doctrine do not apply Respondent Coalition to Defend Affirmative Action contended however that Section 26 contains racial classifications because it targets racially conscious admissions plans in public schools The AAUP joined a coalition brief authored by American Council on Education and joined by 47 other higher education related organizations which was submitted on August 30 2013 The brief argued that while Schuette and his supporting amici raise policy questions about the educational benefits of racially diverse student enrollments and offer commentary on the methods they believe colleges and universities should employ to attain diversity the constitutionality of the pursuit of racial diversity in higher education is not at issue in this case The issue was whether the Michigan amendment distorts the political process against racial and ethnic minority voters in Michigan thereby violating the Fourteenth Amendment to the United States Constitution The brief argued that the constraints Schuette and his amici supporters propose on the lawful tools by which colleges and universities may attain diversity are at odds with the Supreme Court s decisions in Fisher v Texas and Grutter v Bollinger and the longstanding tradition of governmental forbearance in higher education Further that whether and how within the bounds of the Equal Protection Clause to pursue the educational benefits of a diverse student body are questions of academic policy and practice properly assigned to the judgment of colleges and universities The brief reiterated the Supreme Court s decision in Grutter in which it endorsed deference to institutional

    Original URL path: http://www.aaup.org/brief/schuette-v-coalition-defend-affirmative-action-134-s-ct-1623-2014 (2016-02-13)
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  • Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Bd. Of Education, 551 U.S. 701 (2007) | AAUP
    public schools In 2000 a parental coalition called Parents Involved in Community Schools sued the Seattle School District arguing that its policy of allowing all students to apply to attend any district high school but using race as a tiebreaker when a high school received more applicants than it could accept violated the Equal Protection Clause of the 14th Amendment The district court upheld the tiebreaker plan under federal and state law After sending the case back to the state court for a ruling on state law the United States Court of Appeals for the Ninth Circuit on en banc review in 2005 found that the school district had a compelling interest in securing the educational and social benefits of racial and ethnic diversity and in attempting to end racial segregation in its high schools by ensuring that its assignments do not simply replicate Seattle s segregated housing patterns It also concluded that the District s Plan was narrowly tailored to achieve its compelling interests In June 2006 the Supreme Court granted review and will hear Parents Involved in Community Schools v Seattle School District No 1 together with Meredith v Jefferson County Bd Of Education a similar case from Kentucky The court will address the questions of how the Equal Protection rights of public high school students are affected by the jurisprudence of the University of Michigan admissions cases Grutter and Gratz and whether racial diversity is a compelling interest that can justify the use of race in selecting students for admission AAUP joined an amicus brief to the Supreme Court with the American Council on Education and many other higher education organizations The brief notes that w hile there are important differences between higher education and the elementary and secondary school settings at issue in these cases a

    Original URL path: http://www.aaup.org/brief/parents-involved-community-schools-v-seattle-school-district-no-1-and-meredith-v-jefferson (2016-02-13)
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  • Nassar v. University of Texas Southwestern Medical Center, 570 U.S. ____, 133 S. Ct. 2517 (2013). | AAUP
    the position argued by the AAUP in an amicus brief it is a relatively modest change in the burden of proof in such cases Naiel Nassar M D served as an Assistant Professor of Internal Medicine and Associate Medical Director with the University of Texas Southwestern Medical Center UTSW Clinic Dr Nassar complained that he allegedly was being harassed by a Supervisor Dr Levine and sought transfer to another role that would take him out of her line of supervision He stepped down from his faculty post when he received a job offer working for Parkland an affiliated clinic effective July 10 2006 On July 3 he submitted a letter of resignation in which he asserted that his primary reason for resigning was because of Dr Levine s harassing and discriminatory behavior Shortly thereafter Parkland withdrew its job offer Dr Nassar brought suit in federal court accusing UTSW of orchestrating Parkland s refusal to hire him in retaliation for his discrimination complaints in violation of Title VII The jury found that UTSW constructively discharged and retaliated against Dr Nassar and awarded him 3 4 million in back pay and compensatory damages UTSW appealed to a three judge panel of the Circuit Court of Appeals for the Fifth Circuit arguing among other things that Dr Nassar failed to prove that retaliation was the but for cause of Parkland s decision not to hire him Citing to its 2010 ruling in Smith v Xerox Corp 602 F 3d 320 5th Cir 2010 which held that the mixed motive framework is available to Title VII retaliation plaintiffs the Fifth Circuit court panel without further analysis affirmed the district court s judgment regarding liability for retaliation UTSW appealed to the Supreme Court The Supreme Court held that the appropriate standard of proof in retaliation

    Original URL path: http://www.aaup.org/brief/nassar-v-university-texas-southwestern-medical-center-570-us-133-s-ct-2517-2013 (2016-02-13)
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  • Lewis v. City of Chicago, 130 S. Ct. 2191 (2010) | AAUP
    hire candidates from the well qualified category and used the list at least 10 times over the next 5 years White test takers were 5 times more likely to be identified as well qualified than African American test takers as a result 77 of the hired firefighters were white and only 9 were African American Petitioners African American firefighters who were categorized as qualified and not hired claimed that the City s use of the list to hire firefighters had a disparate impact on the basis of race in violation of Title VII Before bringing suit for employment discrimination a Title VII plaintiff must file a claim with the Equal Employment Opportunity Commission EEOC within 300 days after the alleged unlawful employment practice occurred The petitioners in Lewis filed their EEOC claim within 300 days of the first use of the list to hire candidates However the City of Chicago argued that the plaintiffs EEOC claim was untimely because it was filed more than 300 days after the creation of the list The federal trial court ruled for the plaintiffs but the Seventh Circuit reversed declaring the plaintiffs EEOC claim untimely According to Judge Richard Posner the only allegedly discriminatory act was the sorting of candidates into the well qualified qualified or not qualified categories The hiring of candidates the court held was the automatic consequence of the test scores rather than the product of a fresh act of discrimination Lewis v City of Chicago 528 F 3d 488 491 7th Cir 2008 The amicus brief argued that the Seventh Circuit s rule ignored the plain language of Title VII and would lead to irrational results frustrating Title VII s purpose Title VII describes a violation as the use of a discriminatory employment practice language that is facially broad enough

    Original URL path: http://www.aaup.org/brief/lewis-v-city-chicago-130-s-ct-2191-2010 (2016-02-13)
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  • Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009) | AAUP
    Crawford was a thirty one year employee of the Metropolitan Government of Nashville and Davidson County Tennessee Metro who worked in the employee relations office of the Nashville school system In 2001 the Metro Human Resources Department learned that employees in the office where Crawford worked had complained about the inappropriate conduct of their manager Metro investigated these complaints and interviewed Crawford who was not one of the original complainants regarding the manager s conduct During the interview Crawford reported that the manager had made sexually explicit remarks and gestures towards her Two other employees provided similar accounts of the manager s conduct Ultimately Metro took no disciplinary action against the manager but the two other employees who had disclosed the manager s misconduct were quickly discharged on other grounds Crawford herself was terminated in January 2003 on grounds that ultimately proved unfounded Crawford filed a lawsuit claiming retaliation in violation of Title VII Crawford claimed that her cooperation in Metro s internal investigation constituted both opposition to a practice made unlawful by Title VII and participation in a Title VII investigation both actions explicitly protected by Title VII Crawford argued that Metro violated both the opposition and protection clauses of Title VII when it discharged her for cooperating in its investigation The federal trial court rejected Crawford s claims that either Title VII s opposition or participation clause applied to her and ruled in favor of Metro Crawford appealed and the United States Court of Appeals for the Sixth Circuit affirmed pdf the district court s judgment The appeals court ruled that Crawford s actions did not constitute opposition under Title VII because Crawford allegedly did not take an active and consistent stance against her manager s discriminatory acts The court also held that Crawford s participation in Metro s internal investigation was not protected activity under the participation clause because no EEOC charge had yet been filed in the matter According to the court the participation clause only protects employees who agree to help their employer investigate discrimination after an employee has filed a charge with the EEOC or otherwise instigated proceedings under Title VII After the Sixth Circuit issued its decision Crawford asked the U S Supreme Court to review the Sixth Circuit s reasoning and the Supreme Court agreed The AAUP and our coalition partners filed an amicus brief arguing in favor of Crawford s position that the Sixth Circuit had erred The coalition s brief focuses on the conflict between the Sixth Circuit and other federal appeals courts which extend protection to employees participating in an investigation even before an EEOC complaint is filed In addition the brief argues that Congress intended Title VII s participation and opposition clauses to be very broadly defined to provide an incentive to participate in discrimination investigations or oppose acts of discrimination In fact courts generally recognize that Congress intended employers to police themselves under Title VII and have interpreted the participation and opposition clauses with this understanding Finally

    Original URL path: http://www.aaup.org/brief/crawford-v-metropolitan-government-nashville-and-davidson-county-555-us-271-2009 (2016-02-13)
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  • Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359 (August 17, 2015) | AAUP
    of employee status is based on an erroneous understanding of the relationship between academic freedom and collective bargaining Indeed interim developments provide further support for the notion that collective bargaining is compatible with academic freedom These include the NYU administration s decision to voluntarily recognize its graduate assistant union and a new research study that is the first to provide a cross campus comparison of how faculty student relationships and academic freedom fare at unionized and non unionized campuses Therefore the brief concluded that the Board should overrule the test of employee status applied in Brown University and return to its well reasoned NYU decision which found collective bargaining by graduate assistants compatible with academic freedom On August 17 2015 the Board issued its decision in Northwestern University holding that it would not assert jurisdiction over the union s petition for an election because doing so would not serve to promote stability in labor relations The primary question before the Board was whether scholarship football players were employees covered by the NLRA However the Board avoided this question Instead it relied on a seldom used jurisdictional principle to dismiss the case The Board explained even when the Board has the statutory authority to act which it would in this case were we to find that the scholarship players were statutory employees the Board sometimes properly declines to do so stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case Here the Board looked to whether asserting jurisdiction and therefore potentially finding that the players have NLRA rights to unionize would advance the policy of promoting stability in labor relations The Board summarized After careful consideration of the record and arguments of the parties and amici we have determined that even if the scholarship players were statutory employees which again is an issue we do not decide it would not effectuate the policies of the Act to assert jurisdiction Our decision is primarily premised on a finding that because of the nature of sports leagues namely the control exercised by the leagues over the individual teams and the composition and structure of FBS football NCAA Division I Football Subdivision in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction it would not promote stability in labor relations to assert jurisdiction in this case However in its decision the Board clearly and repeatedly emphasized the novel and unique circumstances of the case and the narrow and limited nature of the decision The Board explained that it was not addressing the rights of other individuals at universities particularly the status of graduate student assistants S cholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes In this regard the scholarship players bear little resemblance to the graduate student assistants Footnote 10 See e g Brown University 342 NLRB 483 2004 finding graduate

    Original URL path: http://www.aaup.org/brief/northwestern-university-and-college-athletes-players-association-capa-case-no-13-rc-121359-0 (2016-02-13)
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  • Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014) | AAUP
    Court urging it to affirm the district court s ruling and to clarify that a transformative use analysis may also be used to determine fair use The Circuit Court reversed the district court s decision agreeing with much of the district court s fair use analysis but not with how it applied that analysis The District Court did err by giving each of the four fair use factors purpose of the new use the nature of the original work the amount of the work being used and the impact on the new use on the market for the original work equal weight and by treating the four factors mechanistically The District Court should have undertaken a holistic analysis which carefully balanced the four factors In the district court case Plaintiffs Oxford University Press Cambridge University Press and Sage argued that the unlicensed posting of digital excerpts for student access almost always exceeded fair use and should require a license The district court applied the fair use test using an arithmetic approach essentially weighing each factor equally and concluding that if three of the factors favored the user then the use was fair and determined that the vast majority of the alleged infringements or excerpts all but five constituted fair use The Circuit Court disagreed with the district court s application of the fair use test While agreeing that the nonprofit educational purpose of GSU s copying supported fair use the Circuit Court expressed concern that the use was not transformative e g a parody in that it achieved the same educational purpose as the original work Because of this the first factor carries less weight in the overall fair use decision The Circuit Court also rejected the district court s 10 percent or one chapter bright line rule and wrote the District Court should have performed this analysis on a work by work basis taking into account whether the amount taken qualitatively and quantitatively was reasonable in light of the pedagogical purpose of the use and the threat of market substitution AAUP argued in its amicus brief that the Circuit Court should also consider a transformative use analysis which compares the purpose for which faculty use copyrighted material in their teaching with the original purpose for which the work was intended AAUP argued that by making transformative use of a copyrighted work faculty employ the original work in a new way in order to express new ideas add meaning and convey new messages thereby add ing to our collective knowledge and understanding AAUP contended that an alternative transformative use analysis would not primarily focus on the act of posting copyrighted works the format in which the works were posted or how much was used but rather on how the works were used in teaching By looking at the intended purpose of the use courts can determine whether the use supplants the original work or whether in the case of transformative use it creates new meanings and expresses new messages that

    Original URL path: http://www.aaup.org/brief/cambridge-university-press-v-patton-769-f3d-1232-11th-cir-ga-2014 (2016-02-13)
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