Amicus Curiae Brief — Edwards v. California University of Pennsylvania

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No. 98-964

In The

Supreme Court of the United States

October Term, 1998

a

DILAWAR M. EDWARDS, Ph.D.,

Petitioner,

V.

CALIFORNIA UNIVERSITY OF PENNSYLVANIA;

JOHN PIERCE WATKINS, Ph.D., President;

NANCY Z. NELSON, Ed.D., Vice President for Academic

Affairs; WILLIAM BENEDETTI, Ed.D., Dean in their

official capacities; DAVID CAMPBELL, Chairperson,

Educational Studies Dept.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States

Court Of Appeals For The Third Circuit

*

BRIEF OF AMICI

The Association of American Educators

The Association For Supervision

And Curriculum Development

The Association For Educational

Communications and Technology

In Support of Petitioner

*

Rosert R. MELNICK

Counsel of Record

Mewnick & MELNICK

Federal Building, Suite 300

18 North Phelps Street

Youngstown, OH 44503

(330) 744-8973

Counsel for Amici

QUESTION PRESENTED

1. Whether the Third Circuit Court of Appeals was

correct in applying the standard of public secondary

school cases to that of a university professor and conclud-

ing that a professor does not have a First Amendment

academic freedom right to choose classroom materials

and subjects in contravention of the University dictates?

PARTIES TO THE PROCEEDINGS

California University of Pennsylvania was a party at

the U.S. District Court level, and was dismissed at sum-

mary judgment on Eleventh Amendment grounds. The

remaining Respondents listed in the caption were parties

to the proceedings in the court below.

In addition, Dr. Angelo Armenti, the current Presi-

dent of the University at the time of trial, was automat-

ically substituted as a party for purposes of Petitioner’s

request for injunctive relief under Fed.R.Civ.P. 25 (d)(1).

Che Petitioner is properly listed in the caption, and is

not a corporation for purposes of Supreme Court Rule

29.6.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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waWaemameneees We 20S CASE 66... cece cbse e evan 2

SUMMARY OF THE ARGUMENT ................. 2

a PROS ER ES aR Ral Bie cr a 3

ACADEMIC FREEDOM AT A UNIVERSITY

LEVEL IS OF A DIFFERENT NATURE THAN AT

THE HIGH SCHOOL/SECONDARY LEVEL...... 3

ACADEMIC FREEDOM IS A WELL-RECOGNIZED

CONCEPT AT THE UNIVERSITY LEVEL AS

OPPOSED TO THE SECONDARY LEVEL AND

RE ON WP RENCE Es hee Cire Ko esse deunecesees 6

cok sy ke iiwins chs Sibel db ae ee oak be 11

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TABLE OF AUTHORITIES

Page

CASES

Bradley v. Pittsburgh Bd. Of Educ., 910 F.2d 1172

Be ae | RRR Re ie ra eae ee eo sen vary A SE

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 11

Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794

Ce Ee SOE ak vce ee ORE EE Pe Ras ee es 5

Peloza v. Capistrano Unified School District, 782

Pauge. Pls (5a SG DORR nae hewereecbeesese en 1]

Tilton v. Richardson, 403 U.S. 672 (1971) ............. 11

Widmar v. Vincent, 454 U.S. 263 (1981)............... 1]

Wieman v. Updegraff, 344 U.S. 183 (1952)............. 11

STATUTE

DO CISA. GRC. DOES) ck cece Coben eh neeek se everiess l

CONSTITUTION

First Amendment to the U.S. Constitution...... b, Oy 20

OTHER

American Association of University Professors,

“Policy Documents and Reports” (1984)........... 10

Lectaratign Gf -F ametee TASES? oo ohn ho eR SEK KE EW eo 8

General Report of the Committee on Academic Free

dom and Tenure, | AAUP Bulletin 17 (1915),

reprinted in 53 Law and Contemporary Prob-

MOONS FAS CE is 65 00 2 RE Cee eee Le ea 9

TABLE OF AUTHORITIES — Continued

Page

W. Kaplin, The Law of Higher Education ‘3.6.1 (2nd

L SEG SS hs o aW ca RE RR CORN ASOT AN Ca Re es 10

Professors on Guard: The First AAUP Investigations,

Ae” ae od rer airy era ee meer 8

Religion in the Curriculum: A Report from the ASCD

Panel on Religion in the Curriculum................. 7

JURISDICTION!

Judgment was entered on August 10, 1998 by the

Court of Appeals affirming the judgment of the District

Court which had been entered on April 16, 1997 (App.

B-1). The Petitioner filed a timely Petition for Rehearing

and Suggestion for Rehearing In Banc, and the Court of

Appeals denied the Petition on September 14, 1998 (App.

C-1).

Jurisdiction of the Court is conferred under 28 U.S.C.

sec. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

rhe First Amendment to the U.S. Constitution pro-

vides as follows:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof, or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble and to petition the Government

for a redress of grievances.

RNS 3 sessilis

' The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in

part. No person or entity, other than the Amicus Curiae, its

members, or its counsel made a monetary contribution to the

preparation and submission of this brief.

INTEREST OF AMICI

As organizations serving a membership that includes

thousands of professors, teachers, students and scholars,

it behooves us to defend the First Amendment rights of

the faculty, especially those that relate to faculty rights

and protections as guaranteed by the Collective Bargain-

ing Agreement and the Constitution of the United States.

+

STATEMENT OF THE CASE

Amici incorporate herein by reference the facts as

delineated by Petitioner in his Petition for Writ of Cer-

tiorari.

SUMMARY OF THE ARGUMENT

Academic freedom at a university level is of a differ-

ent nature than at the high school/secondary level. The

Third Circuit erred when it applied the Bradley v.

Pittsburgh Bd. Of Educ., 910 F. 2d 1172 (3rd Cir. 1990) case

~ a secondary school case and set of facts — to the univer-

sity level. There are key distinctions between high school

and university students, and distinctive settings between

high school versus university classrooms, and between

the credentials of high school teachers and university

professors. There is a fundamental necessity of academic

freedom for the university level professor regardless of

whether it is a state or private college or university.

Professor Edwards has been denied the right that

every other professor at this uitiversity has to exercise his

PPR mere oe

or her professional judgment about the selection and use

of teaching materials in courses they teach. This has been

done on the basis of a procedurally irregular, ideologi-

cally driven abuse of power by administrators who

believe that the use of materials including references to

religions and/or containing world-views or ideas based

in religions or any consideration or references to religions

and/or expression of a conservative and pro-religious

(but not partisan or proselytizing) point of view, is tanta-

,

mount to “fundamentalism,” and must be excluded from

a public university.

ARGUMENT

ACADEMIC FREEDOM AT A UNIVERSITY LEVEL IS

OF A DIFFERENT NATURE THAN AT THE HIGH

SCHOOL/SECONDARY LEVEL.

The Third Circuit Court of Appeals, at App. A-6, cites

the Bradley v. Pittsburgh Bd. Of Educ., 910 F. 2d 1172 (3rd

Cir. 1990) a public school case where it explained that:

No court has found that teachers’ First Amend-

ment rights extend to choosing their own curricu-

lum or classroom management techniques in

contravention of school policy or dictates.

(emphases added)

The court then proceeds to apply the above public school

case to a public university:

We conclude that a public university professor

does not have a First Amendment right to

decide what will be taught in the classroom.

If a public school and a public university are the same —

and there are no differences — then the court’s logic

would be understandable and acceptable.

Inasmuch as public schools and public universities

differ, and do differ very significantly, the court’s rea-

soning is erroneous, and must be reversed.

There are many differences between schools and uni-

versities in institutional governance, and differing char-

acteristics and level of maturity of the target group

served, such as: pupils /students /freshmen /sopho-

mores /juniors /seniors /undergraduates /graduate

/scholars /doctoral /post-doctoral candidates; classroom

environment, educational setting, type of instruction, and

major differences in methods and requirements between

schools and universities.

The Third Circuit Court of Appeals has erroneously

used case-law that is relevant to secondary schools and

applied it to universities.

Case-law for schools is determined within a frame-

work of: public school pupils/students (who are more

immature and impressionable than university students);

school teachers (not required to specialize with an earned

terminal degree, and professionally are somewhat lim-

ited); school settings (moderate expectations and restric-

tive educational governance and policy).

The frame of reference at universities is quite differ-

ent from schools in that there are: public university stu-

dents /scholars (who are older /mature /quite

sophisticated); university tenured professors (who are

highly qualified in their fields - an earned terminal

degree — and have earned tenure, and have professional

autonomy and exercise professional judgment); univer-

sity settings with Collective Bargaining Agreements and

stated policies meant specifically for fostering higher

education and higher learning, and the pursuit of truth.

Therefore, case law for school cases and school teachers

is quite inappropriate application to universities and univer-

sity professors.

In Kirkland v. Northside Indep. Sch. Dist., 890 F. 2d 794,

800 (5th Cir. 1989) the Court refers to “teachers” (not

university professors), and “school curricula,” and says:

Although the concept of academic freedom has

been recognized in our jurisprudence, the doc-

trine has never conferred upon teachers the con-

trol of public school curricula. (emphases

added)

The court again refers to: a school case, to school teachers,

to “school policy or dictates,” and “choosing their curricu-

lum,” and emphasizes:

the Bradley court’s instruction that public

school teachers must abide by ‘school policy or

dictates’ when choosing their curriculum.

(emphasis added)

The court somehow fails to distinguish between curricu-

lum and curriculum materials. To be “choosing their curric-

ulum” is an entirely different matter than it is to be choosing

their curriculum materials.

Significantly, the Third Circuit’s academic freedom

standard is found in Keyishian and Tinker. Bradley v. Pit-

tsburgh Bd. Of Educ., 910 F. 2d 1172, 1176 (3rd Cir. 1990):

We do not have to delineate the scope of

[teachers’] academic freedom . . . under the First

Amendment. . . See Tinker . . . [and] Keyishian-

. courts have found this right to encompass

the right to exercise professional judgment in

selecting topics and materials for use in class.

(emphasis added)

The court has asserted that:

the First Amendment does not place restrictions

on a public university’s ability to control its

curriculum. App. A-7

The university arguably may have some influence or

control on the faculty university-wide curriculum com-

mittee on which professors are involved in making cur-

riculum decisions.

Nevertheless, the Third Circuit Court of Appeals has

erred in failing to maintain very significant and crucial

differences and distinctions among terms such as: “cur-

riculum” “course” “subjects” “topics” “course outline”

“syllabus” “curriculum materials,” “teaching materials,”

etc.

ACADEMIC FREEDOM IS A WELL-RECOGNIZED

CONCEPT AT THE UNIVERSITY LEVEL AS

OPPOSED TO THE SECONDARY LEVEL AND

MUST BE PROTECTED

The Association for Educational Communications

and Technology’s Code of Professional Ethics requires

that professors:

1. Shall encourage independent action in an

individual’s pursuit of learning and shall pro-

vide access to varying points of view.

2. Shall protect the individual rights of access

to materials of varying points of view.

8. Shall in the design and selection of any edu-

cational program or media seek to avoid content

that reinforces or promotes gender, ethnic, racial

or religious stereotypes. Shall seek to encourage

the development of programs and media that

emphasize the diversity of our society as a

multi-cultural community.

App. I, Ex. No. 469

In 1987, The Association for Supervision and Curric-

ulum Development came out with a report entitled: Relr-

gion in the Curriculum: A Report from the ASCD Panel on

Religion in the Curriculum. Of the many excellent points

made, of particular relevance to Dr. Edwards’ efforts as a

teacher educator with his students were the following

recommendations by the ASCD Panel:

1. Teacher Educators, both preservice and

inservice, should ensure that teachers acquire

not only the substantive knowledge required

to teach about religion in society but also the

attitudes and understanding necessary to treat

the subject with sensitivity in the classroom.

2. Teachers, administrators and members of

the public should be aware of the impact of

court decisions on the curriculum and should

recognize that teaching about religion is not

unconstitutional.

3. State departments of education should

address the issue of fair and factual treatment

of religion in the curriculum by all local edu-

cation agencies.

4. Textbook selection committees at the state,

district and local school levels should require

such treatment of religion in all curricular

materials ...

5. Publishers should revise textbooks and

other instructional materials to provide ade-

quate treatment of diverse religions and their

roles in American and world culture and to

include appropriate religious and moral

themes in literary and art history anthologies.

App. Vol. III, Tr. Feb. 19, 3-4

The American Association of University Professors

(AAUP) was formed to stem the erosion of academic

freedom for professors who faced reprimand or dismissal

for making statements or acting in a manner displeasing

those in authority. Professors on Guard: The First AAUP

Investigations, (W. Metzger ed. 1977). Its founding docu-

ment, the Declaration of Principles (1915), recognized the

need for the university to set a basic curriculum and

established that the independence of the professor regarding

classroom method and scholarly view is essential in maintain-

ing the intellectual integrity of the professor and the univer-

sity. It defined academic freedom in the classroom:

It is scarcely open to question that freedom of

utterance is as important to the teacher as it is to

the investigator. No man can be a successful

teacher unless he enjoys the respect of his stu-

dents and their confidence in his intellectual

integrity . . . this confidence will be impaired if

there is suspicion on the part of the student that

the teacher is not expressing himself fully or

frankly, or that college and university teachers

in general are a repressed and intimidated class

who dare not speak with the candor and cour-

age which youth always demands in those

whom it is to esteem.

General Report of the Committee on Academic Freedom and

Tenure, 1 AAUP Bulletin 17 (1915), reprinted in 53 Law

and Contemporary Problems 393, 398 (1990).

In its Declaration of Principles (1915) the AAUP set

forth that the university’s authority over the university

professor is not that of “a public employer which may

reasonably restrict the speech rights of employees.”

Instead, the professor is an “appointee” and .. . once

appointed, the scholar has professional functions to per-

form in which the appointing authorities have neither

Lid

competence nor moral right to intervene.

Law and Contemporary Problems at 397. The professor’s

function is one of an appointed professional with a

specialized competence in his academic area. This com-

petence has been recognized by, and must be free from

interference by those in authority.

The 1915 document has been refined as to the rights

accorded tenured professors. The A.A.U.P.’s 1940 State-

ment of Principles of Academic Freedom and Tenure, (and

Interpretive Comments thereto) is now widely accepted

by university professors and universities:

institutions of higher education are con-

ducted for the common good and not to further

the interest of either the individual teacher or

the institution as a whole. The common good

depends upon the free search for truth and its

free exposition.

10

American Association of University Professors, “Policy

Documents and Reports” 1, 3 (1984). Controversial

thought and inquiry are “at the heart of the free academic

inquiry which the entire statement is designed to foster.”

A.A.U.P., Policy Documents and Reports, 1970 Interpre-

tive Comments at 5. The A.A.U.P. recognizes the tenured

protessor’s right to free and full inquiry of the subject

matter under his instruction, since the common good

requires “free” search for truth and the discussion of

controversial ideas. These concepts have long been recog-

nized by both professors and the courts, and A.A.U.P.

academic freedom principles are often incorporated into faculty

contracts — (e.g., the Collective Bargaining Agreement

between SSHE and APSCUF App. 117, 975) — M. Olivas,

The Law and Higher Education: Cases and Materials on Col-

leges in Court, 134 (1989). Courts refer to the A.A.U.P.

declarations as indicia of general practice or custom

when faculty contracts are ambiguous, acknowledging

the importance of the above-stated basic tenets. W.

Kaplin, The Law of Higher Education ‘3.6.1 at 180 (2nd Ed.

1985).

The U.S. Supreme Court has long recognized the

importance of academic freedom and protected it under

the First Amendment, recognizing the importance of the

teacher’s “free play of the spirit” to the preservation of

academic integrity:

It is the special task of teachers to foster those

habits of open-mindedness and critical inquiry

which alone make for responsible citizens, who,

in turn, make possible an enlightened and effec-

tive public opinion. Teachers must fulfill their

function by precept and practice, by the very

1]

atmosphere which they generate; they must be

exemplars of open-mindedness and free inquiry.

They cannot carry out their noble task if the

conditions for the practice of a responsible and

critical mind are denied them

Wieman v. Updegraff, 344 U.S. 183, 195 (1952).

University students are less impressionable than

younger students and are able to appreciate that the

university's policy is one of neutrality toward religion

'ititon v. Richardson, 403 U.S. 672 (1971). Widmar v. Vincent,

454 U.S. 263, 274 n. 14 (1981)

Thus university professors have more latitude in

choosing their subject matter than those who teach youn-

ger students, Peloza v. Capistrano Unified School District,

782 F. Supp. 1412, 1417 (C.D. Cal. 1992), even regarding

controversial subjects such as Origins. Edwards v.

Aguillard, 482 U.S. 578 (1987)

¢

CONCLUSION

For the foregoing reasons the Court should grant the

Petition for Writ of Certiorari.

Respectfully submitted,

Ropert R. MEeLNick

Counsel of Record

Metnick & MELNICK

Federal Building, Suite 300

18 North Phelps Street

Youngstown, OH 44503

(330) 744-8973

Counsel for Amici