AAUP@FHSU


AAUP Signs on to Brief in Support of Dreamers

Last week, the AAUP, together with forty-three educational associations, signed onto an amicus brief submitted to the Supreme Court in support of the Deferred Action for Childhood Arrivals (DACA) program, whose participants are often referred to as “Dreamers.” The brief calls the DACA program “an unmitigated good for this country, its higher education system, and the young persons whom it has benefited.”

The brief was prepared by the American Council on Education and submitted to the high court in the consolidated DACA cases Dep’t of Homeland Sec. v. Regents of Univ. of Cal.et.al.

The amicus brief emphasizes that “DACA has been a symbol of tolerance and openness of our university campuses” and warns that rescinding DACA would broadcast to foreign-born students and potential students from around the globe a message of exclusion that would “irreparably damage the reputation of America’s higher education system in the eyes of the world.”

The Supreme Court is scheduled to hear oral argument in this case in November and a decision is expected before June 2020. The Trump administration moved to end DACA in 2017, but federal courts blocked that attempt. At that time, the AAUP issued a strong statement in support of DACA noting that “a large number of those granted DACA status are our students.” Most recently, the Court of Appeals for the Ninth Circuit upheld one of the district court’s orders requiring the Trump administration to keep the DACA program in place.

You can find a link to the full brief here.

Risa Lieberwitz
General Counsel, AAUP


AAUP Files Brief in Gender-Based Pay Disparity Case

The AAUP has filed an amicus brief in the Ninth Circuit Court of Appeals in support of Professor Jennifer Freyd, who sued the University of Oregon (UO) for pay discrimination based on significant pay disparities with male faculty members. A district court had dismissed her suit based, in part, on the court’s conclusions that she and her male colleagues did not perform equal work, and that the reasons for the pay differentials did not have a disparate impact on women.

The district court, in ruling against Professor Freyd, also claimed that the pay differential was justified by the “academic freedom” of faculty to “remake their job.” The AAUP’s brief refutes this argument, writing, “academic freedom is a condition of employment that all faculty hold in common to enhance their ability to engage in teaching, research, and service. It is not a weapon to be wielded as a justification for gender-based inequalities”

The amicus brief notes that “the wage disparity in Freyd’s case is an example of the ongoing gender-based salary inequalities in the academic profession, generally, and for women full professors in doctoral institutions, in particular.”

Professor Freyd is paid substantially less than her male colleagues in the psychology department who hold the same positions as full professors. A 2016 department study found a “significant equity problem with respect to salaries at the full professor level.” The UO psychology department also underwent an external review, which found gender disparity in faculty salaries at the full professor level. It recommended that the department “continue pressing for gender equity in terms of pay at the senior levels of the faculty.” Both reviews traced the disparity back to retention raises given to male professors who pursued outside offers of employment.

While UO policy provides for gender equity adjustments, administrators failed to adjust Professor Freyd’s salary. The AAUP’s brief argues that the UO retention raise practice was not a valid defense to the discrimination claims, since UO policy provides for gender-equity adjustments but didn’t make any after boosting the pay of male faculty.

You can find a link to the full brief here. We will keep you posted as the case develops.

Risa Lieberwitz
AAUP General Counsel

P.S.–Breaking news update: in a win for affirmative action, a federal judge has upheld Harvard University’s race-conscious admissions standards. The AAUP had previously joined an amicus brief supporting Harvard’s right to exercise its academic judgment in setting admissions standards. More on that here.


Protecting Organizing Rights for Faculty at Religious Institutions

The AAUP filed an amicus brief yesterday in support of Duquesne University faculty who have voted to form a union. The case, Duquesne University of the Holy Spirit v. National Labor Relations Board (NLRB), is currently before the federal court of appeals in DC.

The brief explains that academic freedom is essential to higher education and that the 1940 Statement of Principles on Academic Freedom and Tenure, jointly formulated by the AAUP and the Association of American Colleges and Universities (and endorsed by more than 250 higher education institutions) is its bedrock. Most religiously affiliated institutions recognize the need for unencumbered academic freedom for faculty. The statement establishes that in those instances in which a university seeks to impose a religiously based limitation on academic freedom it must do so in a way that is clear to faculty members, prospective faculty members, students, and the public.

The NLRB established an analogous principle in its 2015 decision in the Pacific Lutheran University case, which found that unless a religious institution has held out faculty as performing a specific religious function, faculty have a right to unionize under the National Labor Relations Act.

Based on this precedent and supported by the widely accepted tenets of the 1940 Statement, we argue that an institution’s failure to articulate a religious function for its faculty in advance of an appointment means that it is subject to NLRB jurisdiction, and the faculty should have a right to organize.

The case started in 2012 when adjunct faculty in the McAnulty College and Graduate School of Liberal Arts at Duquesne sought to form a union affiliated with the United Steelworkers. The Duquesne administration fought at every step, but the faculty voted overwhelmingly to unionize. Duquesne refused to recognize the faculty vote and to bargain with the union and ultimately appealed to federal court. In doing so, it is seeking to overturn the Pacific Lutheran University case. Thus, the ruling in this case could impact not just the faculty at Duquesne, but faculty at many of the nearly 1,000 religiously affiliated institutions in the United States.

We’ll keep you posted on developments in the case. To read the brief, go to this link.

Aaron Nisenson
Senior Counsel, AAUP

P.S. Help support the AAUP’s legal work. Donate to the AAUP Foundation’s Legal Defense Fund.


Professor’s Academic Freedom Violated, AAUP Brief Argues

In an amicus brief filed on Friday, the AAUP emphasized the importance of faculty being able to use controversial language and ideas to challenge students in the classroom, and argued that Professor Teresa Buchanan’s academic freedom was violated when Louisiana State University dismissed her for making statements in the classroom that the university improperly characterized as sexual harassment.

The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on rights of free speech and academic freedom. In public universities, these policies must meet constitutional standards under the First Amendment. LSU’s policies, and their application to the facts, failed this test.

The case originated when, in 2014, LSU’s Office of Human Resource Management found Buchanan guilty of sexual harassment based solely on her occasional use of profanity and sexually explicit language with her students, despite the fact that Buchanan did not use language in a sexual context and instead employed it to further educational objectives. Buchanan’s dean recommended her dismissal, and has stated that he did not condone “any practices where sexual language and profanity are used educating students.”

Subsequently, a faculty hearing committee recommended unanimously against the dismissal of Buchanan. While the committee faulted her for having violated LSU’s policies on sexual harassment by her occasional use of “profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes’ in her methodologies,” it found no evidence that this behavior was “systematically directed at any particular individual.” Despite this, Buchanan was dismissed.

Professor Buchanan filed suit against the school, arguing that LSU’s sexual harassment policy violated her First Amendment rights because it was vague and overbroad both facially and as applied in her case, and that her due process rights were violated. The district court ruled against her, Buchanan appealed, and the AAUP filed an amicus brief in support of her appeal in the United States Court of Appeals for the Fifth Circuit.

The use of provocative ideas and language to engage students, and to enliven the learning process, is well within the scope of academic freedom and is protected by the First Amendment. Many things a professor says may “offend” or even “intimidate” some students. If every such statement could lead to formal sanctions, and possibly even loss of employment, the pursuit of knowledge and the testing of ideas in the college classroom would be profoundly chilled.

The AAUP recognizes the importance of combating sexual harassment and has long emphasized that there is no necessary contradiction between a university’s obligation to address problems of sexual harassment effectively and its duty to protect academic freedom. To achieve these dual goals, hostile environment policies, particularly those focused on speech alone, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom.

You can read the full brief here.

Risa Lieberwitz
General Counsel, AAUP
Aaron Nisenson
Senior Counsel, AAUP

P.S. If you’d like to support AAUP’s legal work, you can donate to the AAUP Foundation today.


Fighting Efforts to Weaken the Power of Faculty

The AAUP has filed an amicus brief in conjunction with the National Education Association (NEA) in a case that wealthy, anti-union organizations are using to try to deal a “mortal blow” to unions.

The case Janus v. American Federation of State, County, and Municipal Employees, Council 31 is the latest legal threat to union rights and is part of a broad effort to weaken the power of working people, to undermine public services, and to erode the common good.

Together with our chapters and allies, the AAUP is continuing to organize to defend higher education as a public good. The brief we filed argues that fair share fees in public-sector unions are an equitable way to distribute the costs of collective bargaining among all who benefit.

Evidence shows that maintaining a robust collective negotiations system advances the public’s interest in providing high-quality public services. Studies included in the amicus brief clearly show that unionization in public schools and universities is linked to improved quality of education and of working relationships within educational institutions.

The Supreme Court will hear oral arguments in the case on February 26, 2018. A decision is expected by the time the Court’s term ends in late June 2018.

On February 26, the day of oral arguments, solidarity actions will take place across the country. We will be at the Supreme Court, and members across the country will take part in activities. Public employees and supporters of public services and higher education from coast to coast will join hands in solidarity actions against the attacks on working people.

Continue to support our legal work in Janus and other cases. Donate to the AAUP Foundation today.

Risa Lieberwitz, General Counsel
Aaron Nisenson, Senior Staff Counsel


Fighting for Our Future

Did you know that an upcoming US Supreme Court case could have a profound impact on the rights of faculty and all Americans to work together for our rights to free expression and safe, just workplaces? The case is part of a broad effort to weaken the voice of working men and women joined in unions. The AAUP is fighting these attacks.

Several court cases and legislative initiatives being pursued across the country aim to weaken the rights of working people, erode and privatize our public institutions, and further exacerbate the power imbalances in our economy. In particular, a ruling in the case Janus v. AFSCME Council 31, to be heard by the US Supreme Court this term, could result in workers in the public sector, including academics who are joined in unions, losing the right to collect contributions from all who are represented.

This would ultimately harm people working in higher education, our students, and our campuses. Standing together makes it possible to negotiate safe workplaces, reasonable teaching loads, a fair return on work, and the ability to retire with dignity. Faculty and academic professionals in unions defend academic freedom, standards in public higher education, shared governance, and due process protections.

The case is an attempt by powerful corporate interests to damage the public sector. We plan to submit an amicus brief in this case.

Here’s what you can do on the local level:

Stay informed. Stay engaged. Continue advocating for your campus community, your students, and higher education as a public good. Help organize your fellow faculty members to exercise a voice on campus. Together we are stronger.

Regardless of the outcome of this case, challenges to our profession, higher education, and our collective voice will continue. It’s more important than ever that we stand together. Our collective action makes it possible to defend the very best values of higher education. Thanks for being a part of it.

Julie Schmid
Executive Director, AAUP

P.S. A great way to support the continued legal work of the AAUP is to donate to the AAUP Foundation’s Legal Defense Fund. Click here to donate.


AAUP Files Brief in Case Involving Harassment of Climate Scientists

The AAUP yesterday submitted an amicus brief in support of faculty members who have been subjected to intrusive public records requests for e-mails related to their climate-science research. The AAUP brief, filed with the Arizona Court of Appeals in the case Energy & Environment Legal Institute v. Arizona Board of Regents, argues that the academic freedom to conduct research is essential to a vital university system and to the common good and that this warrants protecting certain research records from disclosure.

The case arose from an extensive public records request that was made by the Energy & Environment Legal Institute, which uses public records requests in a campaign against climate science. In similar past cases, AAUP briefs have been key to court decisions rejecting the requests.

In this case, E & E submitted public records requests that targeted two University of Arizona faculty members, climate researchers Malcolm Hughes and Jonathan Overpeck. E & E counsel said the suit was intended to “put false science on trial” and E & E vowed to “keep peppering universities around the country with similar requests under state open records laws.”

The current brief urges courts to “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 create high-quality academic research. Where the requests seek prepublication communications and other unpublished academic research materials, as in the case at bar, compelled disclosure would have a severe chilling effect on intellectual debate among researchers and scientists.”

We’ll update you on future developments and the continuing legal work of the AAUP. Do you want to support AAUP’s legal work? Donate to the Legal Defense Fund of the AAUP Foundation.

Best,
Aaron Nisenson,
Senior Counsel, AAUP