Circuit Court Keeps CUNY Professors Trapped in ‘Anti-Semitic’ Union; Appeal Promised

March 18, 2024, New York, NY.—The Second Circuit Court of Appeals has ruled that six City University of New York (CUNY) professors must accept the representation of a union that they believe hates them. The ruling affirmed a lower court’s dismissal of a lawsuit challenging a public-sector union’s “exclusive representation” of the professors’ bargaining unit, citing precedent that can only be overturned by the U.S. Supreme Court. The plaintiffs plan to give the High Court that opportunity.

The six professors, five of whom are Jewish, objected to a Professional Staff Congress/CUNY resolution that encouraged support for the Boycott, Divestment, and Sanctions (BDS) movement and referred to Israel as an apartheid state. The professors viewed this resolution as anti-Israel, anti-Jewish, and anti-Semitic, and resigned from the union. But New York’s Taylor Law requires them to still accept the union’s representation, a mandate that the professors argue violates their First and Fourteenth Amendment rights.

“New York law says our clients, most of whom are Jewish, must rely on a union that has taken a public stand against Israel to negotiate on their behalf,” said Nathan McGrath, president and general counsel for the Fairness Center, a public interest law firm representing the professors along with National Right to Work Foundation staff attorneys. “These professors are being forced to associate with a union that they believe hates them. It’s hard to imagine a clearer illustration of the harm caused by exclusive representation. Our clients look forward to petitioning the U.S. Supreme Court to hear their case.”

If the Supreme Court accepts the professors’ case and rules in their favor, public-sector unions in New York and elsewhere may no longer be able to force representation on all members of a collective bargaining unit, a privilege called “exclusive representation.”

Background

In 2021, the PSC/CUNY issued a resolution that encouraged support for the BDS movement and referred to Israel as an “apartheid” state. Avraham Goldstein, who fled anti-Semitism in the former Soviet Union, and other professors viewed the statement as anti-Israel and anti-Semitic and resigned their union membership in protest. However, the union did not immediately acknowledge several of the professors’ resignations and continued taking union dues from their paychecks.

In 2022, the Fairness Center, along with National Right to Work Foundation staff attorneys, filed a lawsuit on Goldstein and his co-plaintiffs’ behalf to free them from the PSC’s representation. The PSC then stopped taking union dues from the professors and refunded the dues that they alleged were improperly taken from them. This ensured that the professors were no longer funding a union they considered to be hateful.

While the Supreme Court’s 2018 decision in Janus v. AFSCME held that nonmember public employees could not be forced to pay fees to a union, as doing so would violate their First Amendment rights, the Janus decision did not address the reality Goldstein and his five co-plaintiffs now faced: As nonmembers, they nonetheless must accept the “exclusive representation” of a union they believe is anti-Semitic.

Under New York’s Taylor law, they cannot choose other representation or represent themselves with their employer. Moreover, the Taylor Law also allows PSC officials to restrict the services the professors receive as nonmembers and to treat them as second-class employees.

The professors’ lawsuit argues that “exclusive representation” violates the professors’ First Amendment rights of freedom of speech and association by forcing them to accept representation from a union that they believe hates them.

Now that the Second Circuit has dismissed their case, the professors are now preparing to petition the Supreme Court to defend their constitutional rights. If successful, their case could fundamentally alter the relationship between employees and unions in the public sector.

Fairness Center attorneys are available for comment. Please contact John Bouder at media@fairnesscenter.org or 844.293.1001 to schedule an interview.

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The Fairness Center is a nonprofit, public interest law firm offering free legal services to those hurt by public-sector union officials. For more information visit www.FairnessCenter.org.