AAUP@FHSU


AAUP Legal Work: Victories and New Briefs

We have a number of updates to share with you about legal cases addressing discrimination and AAUP policies in which we’ve filed amicus briefs or been otherwise involved.

In March the AAUP joined with Brady: United Against Gun Violence and its youth-led initiative, Team Enough, in submitting an amicus brief to the Michigan Supreme Court. The brief supports the defendant in the appeal of Joshua Wade v. University of Michigan, affirming a lower-court ruling that the university’s prohibition on firearms does not infringe on Second Amendment rights. It argues in favor of the right to impose gun-control measures on campuses to protect faculty members and students and explains how the presence of firearms could have a negative impact on academic freedom. Citing a 2015 statement opposing “campus-carry” laws that the AAUP issued jointly with the American Federation of Teachers, the Association of American Colleges and Universities, and the Association of Governing Boards of Universities and Colleges, the brief notes that “students and faculty members will not feel comfortable discussing controversial subjects if they think there might be a gun in the room” and summarizes research that supports this claim.

The AAUP also submitted a brief in the Oregon Court of Appeals in March in a case that involves the distribution of antiunion FAQs by Oregon State University. The appeal arose from an Oregon Employment Relations Board decision—based on the filing of an unfair labor practices complaint by United Academics of Oregon State University—finding that the university had violated a state law requiring neutrality in union organizing drives by circulating the FAQs. According to the board, after soliciting faculty questions, OSU wrote or edited many of the questions in the FAQs, presented them as having been asked by members of the faculty, and failed to disclose substantive changes to some questions. Oregon State University and six other public universities submitted an amicus brief that argued that the FAQs were protected by shared governance. The AAUP amicus brief challenged that claim, explaining the importance of shared governance as a framework for faculty participation in decision-making and asserting that the unilaterally created FAQs neither constituted nor contributed to meaningful shared governance.

This spring also brought positive developments in two legal cases in which the AAUP previously filed amicus briefs.

The first case involves Margaret DeWeese-Boyd, a professor of social work who alleges that she was denied a promotion by Gordon College because of her outspoken criticism regarding LGBTQ issues at the Christian college. As reported in the winter issue of Academe, the AAUP authored and filed an amicus brief in support of DeWeese-Boyd, arguing that she is not a “minister” and that the college had inappropriately invoked the “ministerial exception” to First Amendment law in an attempt to avoid application of Massachusetts employment laws. In March, the Massachusetts Supreme Court found that DeWeese-Boyd is not a ministerial employee and returned the case to the trial court to determine whether the university had violated Massachusetts antidiscrimination laws.

More good news came in a ruling that allows Jennifer Freyd to proceed with a discrimination suit against the University of Oregon alleging she was underpaid due largely to retention raises given to comparable male faculty. After a lower court dismissed her suit, Freyd filed an appeal in the Ninth Circuit Court of Appeals, and the AAUP submitted an amicus brief in September 2019 supporting her case. The brief provided information about gender-based wage discrimination in academia and about faculty work, explaining that the pay differentials Freyd documented were not justified and arguing that her department’s retention-raise practice had a discriminatory impact that the university could have corrected. The appeals court found in March that the faculty jobs of women and men were “comparable” for legal purposes and that the university could have avoided the discriminatory impact of retention raises by revisiting the pay of comparable faculty when retention raises were given.

Finally, as we let you know in an email earlier this month, in a major victory for graduate employees at private universities, the National Labor Relations Board (NLRB) announced that it was withdrawing a rule proposed in late 2019 that would have barred graduate assistants from engaging in union organizing and collective bargaining under the protection of federal law. With the withdrawal of the proposed rule, the governing standard remains the one established in a 2016 NLRB decision that allowed graduate employees at Columbia University to unionize. The AAUP has long supported the bargaining rights of graduate employees and submitted an amicus brief in the Columbia University case, which was cited and relied upon by the board in its decision.

Amicus briefs in which the AAUP participates appear, along with summaries of the cases they support, on the AAUP website at https://www.aaup.org/our-work/legal-program/amicus-briefs. The summaries are updated after courts issue decisions in the cases.

The AAUP


AAUP Joins Brief Supporting University of Michigan’s Prohibition on Firearms

Yesterday, the AAUP joined an amicus brief with Brady United Against Gun Violence (formerly the Brady Center) and TEAM ENOUGH affirming that the University of Michigan’s prohibition on firearms does not infringe on Second Amendment rights. In it, we support the university’s ability to impose gun control measures that protect faculty and students from the negative impact on academic freedom resulting from firearms in classrooms and other campus locations.

The brief, filed in an appeal in the State of Michigan Supreme Court, argues that the university’s prohibition serves the “critical interest of academic freedom by protecting faculty speech and furthering the University’s core educational goals.” The freedom to teach includes “the right of the faculty to select the materials, determine the approach to the subject, make the assignments, and assess student academic performance. . . . There is widespread concern among university faculty that allowing guns on campus would threaten this freedom and force them to alter their curriculum and important classroom discussions.” The brief also cites a 2015 statement opposing campus carry laws that was issued by the AAUP, the American Federation of Teachers, the Association of American Colleges and Universities, and the Association of Governing Boards of Universities and Colleges. The statement argues that “students and faculty members will not feel comfortable discussing controversial subjects if they think there might be a gun in the room.”

If you want to share this news, a summary and a link to the full brief can be found on our website.

In solidarity,
The AAUP


Report Finds Partisan Ideology and Political Ambition Motivated Changes at Maricopa

An AAUP investigation released today finds that the governing board of the Maricopa Community Colleges was motivated by a desire to bust the faculty union when it decided in February 2018 to repeal the entire faculty manual, restrict the faculty’s participation in institutional decision making, and terminate a “meet-and-confer” process. That process had been used for more than forty years to establish institutional policies related to faculty matters and to make recommendations on salary and budgets.

The board also eliminated the role of the only district-level representative faculty governance body. This also served as the governing body of the faculty association, an organization that was incorporated as a union, but which did not have collective-bargaining rights under state law. In short, the board’s actions destroyed what had been an effective system of shared governance.

Our investigating committee—Bethany Carson of Santa Fe Community College, Emily M.S. Houh of the University of Cincinnati, and I—found that the governing board acted in disregard of normative standards of academic governance, as laid out in the Statement on Government of Colleges and Universities, which was jointly formulated by the AAUP, the American Council on Education, and the Association of Governing Boards of Universities and Colleges.

We also found evidence, based on correspondence obtained through open records requests, which strongly suggests that the board’s intervention was an engineered performance of political theater motivated by the partisan ideology of two former Republican members of the Arizona House of Representatives—one who served as chair of the board and the other as a member.

Join me for a Facebook Live discussion of the report tomorrow at 12 ET. RSVP here.

AAUP investigating committees are appointed in a few select cases annually in which severe departures from widely accepted principles and standards of academic freedom, tenure, or governance have been alleged and persist despite efforts to resolve them. Governance investigations are an important tool in our work to protect and advance the faculty’s voice in decision making; they shine a light on egregious practices and are intended to motivate institutions to improve these practices.

In this case, improvements came quickly. Not long after the visit of the investigating committee, three new members were elected to the Maricopa governing board and the existing board president announced his resignation. After the AAUP shared our findings with the administration, the board passed a proposal that rescinded the earlier changes and will eventually restore many of the shared governance mechanisms that the old board had terminated.

You can read the full report here.

Best,
Irene Mulvey,
Chair of the Investigating Committee,
Professor of Mathematics, Fairfield University

P.S.–You can support governance and academic freedom investigations by donating to the AAUP Foundation today.


AAUP will investigate violations of shared governance at Vermont Law

This week, the AAUP authorized an investigation into apparent departures from widely adopted standards of shared governance at Vermont Law School after the school’s administration and governing board “restructured” the faculty by lowering salaries, reducing the number of full-time positions, and stripping many of tenure, all without involving the faculty in the decision-making process.

A June 5, 2018, memorandum presented fourteen tenured professors with a stark choice: either surrender their full-time, tenured positions and faculty voting rights, sign an agreement containing general and age-discrimination releases along with nondisparagement and nondisclosure provisions, and accept nontenured appointments at lower pay, or have their appointments summarily terminated as of July 1, 2018, with immediate cessation of salary and benefits.

After one faculty member contacted the AAUP seeking assistance, we wrote to the administration three times highlighting our concerns in the case and reiterating appropriate procedural standards for terminating appointments because of financial exigency.

Our concerns, in this case, are myriad. A decision of far-reaching importance and consequence to the entire law school community, and particularly to the faculty members and students, appears to have been taken by the Vermont Law School administration and board without meaningful consultation with the faculty. The Statement on Government of Colleges and Universities, jointly formulated by the AAUP with the American Council on Education and the Association of Governing Boards of Universities and Colleges, “rests on the premise of an ‘inescapable interdependence’ in the relationship among governing board, administration, and faculty, which calls for ‘adequate communication among these components, and full opportunity for appropriate joint effort.”

In addition, with only five faculty members having retained tenure at an institution with more than six hundred students, the restructuring appears to have effectively eviscerated the existing tenure system and, with it, protections for academic freedom.

AAUP investigating committees in the area of college and university governance are charged with inquiring into cases that appear to feature severe departures from AAUP-supported governance standards. Committees are composed of AAUP members from other institutions who have had no previous involvement in the matter. If the investigating committee’s published report finds that serious violations have occurred, the AAUP may place the institution on its sanction list by vote of the Association’s annual meeting, which informs the academic community and the public that conditions for academic governance at the institution are unsound.

We will keep you apprised of developments in the case. If you’d like to support our investigative work around shared governance and academic freedom, please donate to the AAUP Foundation, which supports our investigations.

Thank you,

Anita Levy
Senior Program Officer, Department of Academic Freedom, Tenure, and Governance