Report of the Office of Staff Counsel December 2000-June 2001

General Counsel:          Professor David Rabban, University of Texas Law School

Staff:                            Donna Euben, Staff Counsel
Ann Springer, Associate Counsel

The AAUP legal office continues to provide extensive assistance to the academic community around the country on a variety of higher education legal issues. We have had a very busy 2000­2001 year, and here is a brief update on the activities of the Legal Office since our last report of December 2000.

I.          Recent Decisions in AAUP Amicus Cases

Since our December 2000 report, courts have issued numerous decisions affecting higher education law in cases where AAUP had filed an amicus brief.

A       Academic Freedom and Research

Urofsky v. Gilmore: In November AAUP wrote an amicus brief in support of a certiorari request to the U.S. Supreme Court to hear a case by six professors who teach at public institutions in the Commonwealth of Virginia. The professors challenged a statute that restricts the ability of state employees to access sexually explicit material on state-owned or state-leased computers, alleging that it interfered with their academic freedom to research and teach.

In June 2000 the Fourth Circuit ruled that "the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First Amendment." In so doing, the majority of the court, while recognizing institutional academic freedom under the First Amendment, found that academic freedom for individual professors is merely a professional norm, not a constitutional right. The court also opined that the work-related speech of state employees, including professors, is never a matter of public concern. AAUP and The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia ("Thomas Jefferson Center") had filed a friend-of-the-court brief with the Fourth Circuit. After its decision, AAUP and the Thomas Jefferson Center filed another amicus brief in support of the professors' petition to the Supreme Court, arguing that the Fourth Circuit majority deviated from the clear precedents of the Supreme Court and other courts of appeals that recognize academic freedom as an individual right of professors, and that work-related speech of professors can be a matter of public concern.

On January 5, 2001 the U.S Supreme Court declined to review the lower court's decision, thereby leaving intact the Fourth Circuit's assertion that individual professors lack a constitutional right to academic freedom.

Next Steps:      This case is not the only recent case to raise issues of individual versus institutional academic freedom. See, e.g., Edwards v. California University of Pennsylvania, 156 F.3d 488 (3d Cir. 1998)(public university professor does not have a First Amendment right to' decide what will be taught in the classroom), and Brown v. Armenti, 2001 WL 388752 (3d Cir. 2001)("the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught"). In addition to filing amicus briefs, the legal office is making every effort to educate the higher education community about this grave issue. General Counsel David Rabban recently spoke on the misuse of institutional academic freedom at the Baruch College Conference on the Study of Collective Bargaining in Higher Education, and is writing an article about the relationship of institutional and individual academic freedom for the November/December issue of Academe. The legal office is also proposing a panel on the relationship between individual and institutional academic freedom for the 2002 conference of the National Association of College and University Attorneys, and has incorporated this issue into many of its public presentations.

B. Student Publications and Freedom of Expression

Kincaid v Gibson: On September 9, 1999 a divided three judge panel of the Sixth Circuit ruled that no First Amendment violation resulted from a college administration's ban on the distribution of a student-created college yearbook based on its cover and contents. The majority ruled that the yearbook was not a public forum, and that the university had a right to approve its content before distributing it. In May 1998 AAUP submitted an amicus brief with the Thomas Jefferson Center and the Kentucky American Civil Liberties Union (ACLU), arguing that the administration's actions violated the students' First Amendment right to publish the yearbook, which was under student editorial control.

On January 5, 2001 the full Sixth Circuit ruled in a 10-3 decision that the University administration violated the First Amendment rights of the student editors. The court ruled the yearbook to be a limited public forum, finding "[i]t ... difficult to conceive of a forum whose nature is more compatible with expression" than the yearbook. The court ruled that "[t]he university's confiscation of the journal of expression was arbitrary and unreasonable," and "ranks with forced government speech as amongst the purest forms of content alteration." The court also recognized that college students had greater First Amendment rights than secondary students. The decision is available from the AAUP website.