AAUP Amicus Briefs

For information on how to submit a request for amicus assistance, please read about the amicus curiae brief application process.

In accord with the AAUP’s principles and litigation priorities, our legal office files amicus briefs in cases involving academic freedom, tenure, discrimination, affirmative action, sexual harassment, and intellectual property issues, among other things. In rare circumstances the AAUP participates as a party in cases involving academic freedom, First Amendment rights, and national security.

The decision to file a brief is made by the president, general counsel, and general secretary; the AAUP’s Litigation Committee, composed of legal experts in a variety of areas, provides additional guidance. The AAUP generally files amicus briefs only in appellate or supreme courts at the state or federal level.

The AAUP legal staff sometimes takes primary responsibility for drafting and submitting an amicus brief; other times, the AAUP signs onto a “coalition” brief that has been drafted primarily by another organization but implicates an important interest of the AAUP.

Recent Amicus Briefs

Astiz v. Canisius College, No. CA 23-00928 (N.Y. Sup Ct.—4th App. Div. 2024)

On March 7, 2024, the AAUP filed an amicus brief in the Fourth Judicial Department, Appellate Division, of the New York Supreme Court, in support of four tenured professors at Canisius College who were terminated due to their college’s purported financial difficulties.

Jensen v. Brown, No. 23-2545 (9th Cir. 2024)

The AAUP and the Nevada Faculty Alliance filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of a math professor who faced retaliation from college administrators after he voiced concerns about the lowering of curriculum standards and worsening respect for shared governance.

Kilborn v. Amiridis, No. 23-3196 (7th Cir. 2024)

The AAUP filed an amicus brief in the United States Court of Appeals for the Seventh Circuit in support of a law school professor who faced retaliation from his university for a question he included on a final exam, and for other classroom speech he engaged in during teaching.

Academic Freedom

Jensen v. Brown, No. 23-2545 (9th Cir. 2024)

The AAUP and the Nevada Faculty Alliance filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of a math professor who faced retaliation from college administrators after he voiced concerns about the lowering of curriculum standards and worsening respect for shared governance.

Kilborn v. Amiridis, No. 23-3196 (7th Cir. 2024)

The AAUP filed an amicus brief in the United States Court of Appeals for the Seventh Circuit in support of a law school professor who faced retaliation from his university for a question he included on a final exam, and for other classroom speech he engaged in during teaching.

Pernell v. Lamb, No. 22-13992 (11th Cir. 2023)

On June 23, 2023, the AAUP filed an amicus brief in the United States Court of Appeals for the Eleventh Circuit in support of Florida faculty who are challenging the state’s “Stop WOKE” Act. That law, passed in 2022 and formally known as the Individual Freedom Act, prohibits professors at Florida’s public universities from expressing certain disfavored viewpoints while teaching on topics including those involving racial and sexual discrimination and injustice. The AAUP’s brief argues that the law violates the First Amendment and threatens to destroy academic freedom, sabotage higher education, and undermine democracy.

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Discrimination and Sexual Harassment

Wieland v. Board of Regents of the Nevada System of Higher Education, No. 23-15339 (9th Cir. 2023)

On August 20, 2023, the AAUP and Nevada Faculty Alliance (NFA) filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of Dr. Alice Wieland, a former assistant professor at the University of Nevada, Reno, who was denied tenure largely based on the tenure committee’s assessment of student evaluations of her teaching. Dr. Wieland filed a lawsuit against the university, alleging that her tenure denial violated Title VII of the Civil Rights Act of 1964’s prohibition on sex-based discrimination. The AAUP and NFA’s joint amicus brief argues that courts should take account of a large body of empirical evidence showing that gender bias often plays a role in student evaluations of teaching, and that, in certain circumstances, the use of student evaluations in connection with adverse employment actions such as tenure denial can constitute evidence supporting a claim of sex-based disparate treatment under Title VII.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. __, No. 20-1199 (June 29, 2023); and Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. __, No. 21-707 (June 29, 2023)

The Supreme Court recently held in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina that the race-conscious admissions policies employed by Harvard and University of North Carolina at Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The decision runs contrary to over forty years of precedent and the arguments and cautions presented by the AAUP in an amicus brief filed jointly with thirty-nine other higher education associations.

Xi v. Haugen, No. 21-2798 (3d Cir. appeal filed Sept. 24, 2021)

On February 14, 2022, the AAUP joined an amicus brief challenging the federal government’s discriminatory targeting and surveillance of Asian American and Asian immigrant scientists and researchers—especially those of Chinese descent. The brief, authored by Asian Americans Advancing Justice-AAJC and Asian Americans Advancing Justice-Asian Law Caucus and joined by seventy other organizations, provides important context about the FBI and other federal agencies’ history of engaging in racially motivated investigations and prosecutions of Asian American scientists and academics and describes the immense harm this discriminatory treatment causes individuals and Asian American communities throughout the United States.

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Faculty Collective Bargaining Rights

President and Trustees of Bates College, No. 01-RC-284384 (NLRB; request for review granted in part Mar. 18, 2022)

On May 13, 2022, the AAUP moved to file an amicus brief with the National Labor Relations Board (NLRB) to provide the AAUP’s views on a case in which a union proposed including college and university faculty members in a collective bargaining unit with staff. The AAUP’s brief explains that, under the National Labor Relations Act (NLRA), where the union’s proposed unit is given deference: (1) bargaining units that include faculty and staff employed at institutions of higher education are not categorically barred, provided that faculty members are given a mechanism to express their desires on the issue; (2) AAUP policy statements concerning academic freedom and shared governance do not preclude faculty members from deciding to be included in a unit with staff; and (3) the exclusion of tenured and tenure-track faculty from a proposed bargaining unit comprised of contingent faculty and staff does not imply that tenure-line faculty are not employees entitled to the full protections of the NLRA.

United Academics of Oregon State University v. Oregon State University, CA No. A174198 (Or. Ct. of App.)

On March 16, 2021, the AAUP submitted an amicus brief in the Oregon Court of Appeals explaining that “shared governance” did not protect an administration’s distribution of material violating Oregon’s union neutrality law. The appeal arose from an Oregon Employment Relations Board decision finding that Oregon State University had violated a state law requiring neutrality in union organizing drives by authoring FAQs and distributing them to faculty. The university and an amicus brief submitted in support of its case argued that the FAQs were protected by shared governance. The AAUP amicus brief explains the importance of shared governance, that it establishes a system for faculty participation in shared decision making, and that the university FAQs did not constitute shared governance.

Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020)

On January 28, 2020, in a case in which the AAUP filed an amicus brief, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) issued a decision finding that adjunct faculty did not have the right to unionize at a religiously affiliated university under federal labor law. Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020) (“Duquesne”). The core issue was whether in applying federal labor law, the National Labor Relations Act (NLRA), to the faculty, the NLRB and the Courts would risk interfering in the religious affairs of Duquesne, thereby violating the Religion Clauses of the First Amendment. The NLRB used the test it set forth in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”), and found there was no danger of unconstitutional entanglement because the faculty in question did not perform a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief supported the NLRB test and pointed to the AAUP’s limitations clause as an example of how a comparable test has been applied in higher education. However, in a 2 to 1 decision, the DC Circuit rejected the Pacific Lutheran test, and applying a narrower bright-line test held that the NLRB did not have jurisdiction and therefore the adjunct faculty could not unionize under the NLRA.

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Intellectual Property

Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014)

On October 17, 2014, The Eleventh Circuit Court of Appeals expounded upon the test used to determine the “fair use” exception to copyright protection. The district court initially held that faculty members’ use of certain electronic course reserves and electronic course sites to make excerpts from academic books available to students at Georgia State University (GSU) was “fair use.” AAUP submitted an amicus brief  to the Circuit 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.”

Board of Trustees of the Leland Stanford Junior University, v. Roche Molecular Systems, Inc. et al., 131 S. Ct. 2188 (2011)

Petitioner Stanford University sued respondent Roche Molecular Systems, Inc. The research company responded by arguing it co-owned a patent based on a professor inventor's assignment, so the university lacked standing. This complex case has evolved into a broader battle over the patent rights of faculty members to their inventive work. 

Pittsburg State University/Kansas NEA v. Kansas Board of Regents, PSU and PERB, 280 Kan. 408 (Kan. 2005)

This case involves a challenge by the Kansas National Education Association (KNEA) to the Kansas Board of Regents’ proposed policy giving ownership of faculty intellectual property to the universities at which they work. The Kansas Supreme Court ruled that intellectual property rights are not simply assumed to be work-for-hire belonging to the university and can be a subject of collective bargaining.

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Tenure

Astiz v. Canisius College, No. CA 23-00928 (N.Y. Sup Ct.—4th App. Div. 2024)

On March 7, 2024, the AAUP filed an amicus brief in the Fourth Judicial Department, Appellate Division, of the New York Supreme Court, in support of four tenured professors at Canisius College who were terminated due to their college’s purported financial difficulties.

Wortis v. Trustees of Tufts College, No. SJC-13472 (Mass. 2023)

In response to a request for amicus briefs from the Massachusetts Supreme Judicial Court, the AAUP submitted an amicus brief explaining how Tufts University violated the principle of tenure, and its guarantees of academic freedom and economic security, when it imposed a draconian compensation plan on medical school faculty.

Vergara v. California, 246 Cal. App. 4th 619, 209 Cal. Rptr. 3d 532 (Cal. App. 2d Dist., May 3, 2016)

In this case, the Court of Appeal of California issued a decision overturning 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 AAUP submitted an amicus brief which 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. The Court of Appeal reversed the trial court’s decision, holding that the statutes themselves did not create equal protection violations, so they are not unconstitutional.

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