# Amicus Curiae Brief — Edwards v. California University of Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0993%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1143 ## Text \ » 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 ee ERTS 65s csi cee ec dicvecsuetevess i rARsino 10 THE PROCEEDINGS ..........0c00005 il SEES SAE PAT ERPRPIL EADS x os visa bveccavccvevencvcs iv RI Gk Clie a Sno xa'ns ov basis Petdaveews es l CONSTITUTIONAL AND STATUTORY PROVI- SE EEE on 4h 6 hb Vis oy cK a 4 bee's bee o's l SUREMIOE GEE” SPEER PRRIGE on dnc ck Va accuse donee’ 2 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 iV 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0993%3A3. Public record. Not legal advice.