Report of the Office of Staff Counsel December 2000-June 2001
General Counsel: Professor
David Rabban, University of
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
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
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
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