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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.


Update: The Biden Administration and Higher Ed

The AAUP engages in advocacy and legal work on a range of issues affecting higher education, and we are pleased to report that this winter there have been positive developments in a number of areas. While much work remains to be done to ensure widespread access to quality higher education for all, these developments are good news for the higher education community.

Coronavirus Relief Package. Last week, President Biden signed into law a $1.9 trillion coronavirus relief package, which includes an additional $40 billion in aid for higher education. Institutions must spend about half of the money to help struggling students with living expenses and the technology needed for remote classes. It is still unclear whether undocumented and international students will be eligible for relief. The law also provides dedicated support to historically Black colleges and universities, tribal colleges and universities, Hispanic-serving institutions, and other minority-serving institutions to address the disproportionate effect of the pandemic on those institutions and the students they serve. The AAUP, along with coalition partners, is advocating for a New Deal for Higher Education that would significantly reinvest in our nation’s colleges and universities.

Graduate Employee Unionization. In a major victory for graduate employees at private universities, the National Labor Relations Board (NLRB) announced last week 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. The AAUP has long supported the bargaining rights of graduate employees and has submitted amicus briefs in cases on this issue as well as submitting comments opposing the 2019 proposed rule and demonstrating both that graduate assistants are employees with the right to unionize under the NLRA and that unionization advances their academic freedom.

Deferred Action on Childhood Arrivals (DACA) and Immigration Reform. As one of its first acts, the Biden administration issued an executive order to preserve and fortify the DACA program, which allows undocumented immigrants brought to the United States as children to remain in the country legally and expands access to higher education by providing eligibility for in-state tuition and state-funded grants and loans to participants. In 2017 the Trump administration sought to terminate the DACA program, despite overwhelming opposition to this move from the higher education community. Lower courts prevented the termination of the program, and ultimately the US Supreme Court, in a case in which the AAUP joined an amicus brief supporting the DACA program, found that the Trump administration’s attempt to terminate the program was unlawful and allowed it to stand.

The Biden administration has also proposed comprehensive immigration reform legislation to strengthen and improve the immigration system, including expanding and making permanent the DACA program and providing a pathway to citizenship for Dreamers. The legislation could also ease the enrollment of international students, as the AAUP has advocated.

Travel Bans. On Inauguration Day, President Biden also repealed various travel bans that barred or severely limited the ability of students, exchange scholars, and other visitors from a number of predominantly Muslim countries from entering the United States. The Trump administration had issued four orders banning travel from certain countries. The AAUP and the higher education community overwhelmingly opposed the travel bans, and courts prevented the implementation of the first three. However, in a case in which the AAUP joined an amicus brief in opposition to the travel bans, the US Supreme Court upheld the fourth version of the ban in 2018. The Biden administration’s proclamation revokes the travel bans, finding that they are “a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.”

LGBTQ Discrimination. Another executive order issued on Inauguration Day extends federal nondiscrimination protections to discrimination based on gender identity or sexual orientation. The order builds on the Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, Georgia; the AAUP joined an amicus brief in this case, arguing that workplace discrimination based on LGBTQ status is unlawful. In the case, the Supreme Court extended protection of a federal law banning employment discrimination based on sex to individuals who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth. Reversing the Trump administration’s approach, the Biden order extends this protection to discrimination based on sex forbidden by Title IX and other federal anti-discrimination statutes and regulations.

Race in Admissions. On February 3, the Biden administration dropped a lawsuit brought by the Trump administration against Yale University that had accused Yale of discriminating against white and Asian American applicants in its admissions process. This lawsuit was one of many brought in a concerted effort to end the consideration of race in college admissions. The AAUP has repeatedly joined amicus briefs supporting the ability to use race as one factor in university admissions. While the dropping of this suit indicates that the administration will take a more balanced approach to the issue, private parties are seeking to bring a case to the US Supreme Court in efforts to outlaw such consideration.

Racial Equity. Last fall, the Trump administration ordered federal agencies and federal contractors (potentially including colleges and universities) to end trainings that address topics like white privilege and racism. The AAUP and many others in the higher education community spoke out about bans on racial equity training. President Biden reversed the Trump order and replaced it with a new executive order requiring federal agencies to assess their equity and diversity activities.

Student Debt. With coalition partners, the AAUP is calling for the cancellation of student debt for borrowers who have unjustly shouldered the burden of financing higher education the last forty years. The Department of Education has extended through September 2021 a moratorium on federal student loan payments. In response to concerns that debt cancellation could trigger damaging tax consequences for borrowers, last week’s coronavirus relief law includes a provision that says if student debt is cancelled, the value of the amount forgiven will not be taxed by the federal government.

Far more work remains to be done, but we are heartened by these first steps and look forward to continuing to advocate for equity and access in higher education.


Great news for Graduate Employees

In a major victory for graduate employees at private universities, the National Labor Relations Board (NLRB) announced today 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. Currently, graduate teaching and research assistants, and other students receiving compensation from their university, can organize and bargain in unions at many private universities under the federal National Labor Relations Act (NLRA). The act does not cover public universities or some religious private universities. Graduate employees have taken advantage of these rights by organizing unions and negotiating collective bargaining agreements that greatly advance the rights and benefits of their members.

The proposed rule sought to undo this progress. Graduate employees currently have the right to organize and bargain under the NLRA as the result of a 2016 decision by the NLRB in a case involving graduate teaching and research assistants at Columbia University. 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. The 2019 rule proposed under the Trump administration would have reversed this decision and would have established that students at a private college or university who perform any services for compensation in connection with their studies, including but not limited to teaching or research, would not be “employees” under the purview of the National Labor Relations Act. Therefore, they would not be accorded the right to unionize under the NLRA. The AAUP submitted comments opposing the proposed rule and demonstrating both that graduate assistants are employees with the right to unionize under the NLRA and that unionization advances their academic freedom.

The issue of graduate employee coverage under the NLRA has been the subject of back-and-forth decisions by the NLRB, with Republican-dominated boards often excluding them from coverage (as in a 2004 Brown University case) and Democratic-dominated boards often including them in the coverage (as in the 2016 Columbia University case). The proposed rule would have established the exclusion as a regulatory rule, which is much harder to overcome.

Because the rule is withdrawn, graduate employees can continue to organize and bargain under the protection of the NLRA as provided in the Columbia University decision. Given the change in administrations, which should ultimately yield a change in the composition of the NLRB, we are hopeful that the rights of private-university graduate employees to unionize will be firmly established.


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

AAUP Opposes Proposed NLRB Rule That Would Bar Grad Unionizing

The AAUP has submitted comments to the National Labor Relations Board (NLRB) opposing a proposed rule that would bar many graduate assistants from forming unions. The rule put forward by the NLRB holds that students who are also teaching or research assistants at private colleges or universities are not employees and are therefore not entitled to unionize or bargain collectively under the National Labor Relations Act.

The AAUP’s comments reject this claim and strongly refute the board’s assertion that “academic freedom” supports the proposed rule.

The AAUP has long supported the union rights of faculty and graduate assistants. In addition to the other benefits it provides, collective bargaining is an effective tool to promote and protect academic freedom. AAUP chapters have established explicit guarantees of academic freedom in their collective bargaining contracts, sometimes incorporating language from the 1940 Statement of Principles on Academic Freedom and Tenure. These contracts make promises of academic freedom legally enforceable.

Graduate assistants perform specific work in return for compensation. The work they do is often indistinguishable from that performed by faculty members, and universities generally treat graduate assistant stipends as payment for teaching or research work, not as general financial support. As such, and as the AAUP’s comments make clear, graduate assistants are employees who should have the same rights as other private-sector employees under the National Labor Relations Act.

The comments also refute the NLRB’s assertion that potential harm to an institution’s academic freedom is a basis for excluding graduate assistants from collective bargaining, arguing that “collective bargaining by faculty and graduate assistants is one of several ways to promote academic freedom on campus, as it allows faculty, students, and administrators to discuss collectively how best to do their shared work of teaching and research.”

The comments were drafted by Risa Lieberwitz, AAUP general counsel and professor of labor and employment law at Cornell University’s School of Industrial Relations, and Rana M. Jaleel, assistant professor of gender, sexuality, and women’s studies at the University of California, Davis.

You can read the comments and a summary of them here.


P.S. Looking for a primer on academic freedom? Check out our one page overview here.