By Debra Rubin

An appeal in a case of six City University of New York (CUNY) professors who were turned down by a lower court in their efforts to negotiate separately from a union they consider antisemitic has been filed in the Second Circuit Court of Appeals. Five of the six professors are Jewish and Zionists who “abhor” the antisemitic positions of the Professional Staff Congress (PSC), which, among other things, has endorsed the Boycott Divest Sanctions (BDS) campaign against Israel.

New York is one of 35 states that requires its pension fund to divest from any company that participates in BDS, a movement considered antisemitic by most Jewish organizations and the State Department, and that has been overwhelmingly condemned by Congress. The professors believe the movement “vilifies Zionism, disparages the national identity of Jews, and seeks to destroy Israel as a sovereign state.”

Yet, the six — Avraham Goldstein, Michael Goldstein, Frimette Kass-Shraibman, Mitchell Langbert, Jeffrey Lax and Maria Pagano — can’t end their association with the PSC even though they have resigned from the union. Under New York’s Public Employees’ Fair Employment Act, known as the Taylor Law, public employees are separated into distinct bargaining units that share “a community of interest,” in this case the PSC. Therefore, the six would share in any negotiated agreements reached with the PSC.

“The Professors cannot end this mandatory association with PSC short of quitting their positions — an option that would effectively allow PSC to drive them, and their disfavored viewpoints, from CUNY,” according to the court papers filed by the Fairness Center and the National Right to Work Legal Defense Foundation, which are representing the six pro bono (free of charge).

The case, Goldstein et al v. PSC, was heard Oct. 26, 2022 in U.S. District Court for the Southern Region of New York by Judge Paul A. Engelmayer. While the court agreed the union dues should be returned to the professors, it ruled against them on the two larger First Amendment issues that would have overturned provisions of the Taylor Law.

The lower court based its decision on a 1984 case, Minnesota State Board for Community Colleges v. Knight, which held that an exclusive representative bargaining system does not compel association in violation of the First Amendment.

The court allowed the one count compelling the union to return the dues that continued to be taken after some members’ resignations to move forward, citing the Janus v. AFSME case. In that 2018 case, the Supreme Court, in a 5-4 decision, determined unions covering public sector workers such as teachers, firefighters and police, could not charge nonmembers for their services because doing so violated those nonmembers’ First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.” That portion of the case, however, has been rendered moot since the union has since refunded the contested dues.

However, the recent filing noted: “If the First Amendment prohibits anything, it prohibits the government from dictating who speaks for citizens in their relations with the government.”

Thus, the lower court ruling and CUNY, “necessarily infringe on the Professors’ speech and associational rights by forcing them to accept a hostile political group, which they view as anti-Semitic, as their exclusive agent for speaking and contracting with their government employer,” it stated.

Nathan J. McGrath, who represented the Harrisburg, Pennsylvania Fairness Center, previously told the Jewish Link that the lower court decision was not unexpected since it based its decision on existing law.

He added that the six professors should be allowed to completely dissociate from a union they believe hates them. However, he said, after the most recent filing that if the appellate court finds that being “represented by a union they don’t want—even an antisemitic one—is not unconstitutional” the professors and legal representatives would ask the U.S. Supreme Court to take up the case. If the case proves ultimately successful, McGrath believes it could transform the relationship between public-sector unions and employees in New York and beyond.

All briefs for the appeal must be filed by the end of August after which the Second Circuit may hear oral arguments. McGrath said he does not expect a decision before later in the year or early 2024.

“No American worker should be forced to associate with union officials and union members that openly denigrate their identities and deeply-held beliefs,” said National Right to Work Foundation President Mark Mix in a prepared statement. “Yet, New York State’s Taylor Law grants union officials the power to force dissenting workers under the ‘exclusive representation’ of a union hierarchy. As these CUNY professors have experienced, granting union officials the power to nullify public employees’ free association rights in this way breeds serious harm and discord among employees.”

Several of the professors represented have had a contentious history with the union and CUNY and have been subjected to threats and hostile actions because of their pro-Zionist beliefs.

Michael Goldstein, an administrator and adjunct business professor at Kingsborough Community College in Brooklyn, has been employed for 33 years by the university, 24 of those at Kingsborough, where his father once served as president. He believes PSC members are waging a war to get him fired. In recent years he has had nails placed in the tires of his car and seen hateful graffiti scrawled on a picture of his father.

Lax, a professor at Kingsborough for 19 years, cites in the lawsuit a determination he has already received from the Equal Employment Opportunity Commission (EEOC) that “PSC leaders discriminated against him, retaliated against him, and subjected him to a hostile work environment on the basis of religion.” Lax is Orthodox and a founder and spokesperson for S.A.F.E. CUNY (Students and Faculty for Equality at CUNY), which advocates for Zionist Jews at CUNY. It was founded in part as a response to discrimination by the union.

Avraham Goldstein is an assistant professor of mathematics at Borough of Manhattan Community College, a board member of S.A.F.E. CUNY and an observant Jew originally from the former Soviet Union. He has recently been embroiled in efforts protesting a pro-Palestinian display at the college, which accused Israel of “occupying” Palestinian land and “ethnic cleansing” and touched off a storm of controversy.

Debra J Rubin has had a long career in journalism writing for secular weekly and daily newspapers and Jewish publications. She most recently served as Middlesex/Monmouth bureau chief for the New Jersey Jewish News. She also worked with the media at several nonprofits, including serving as assistant public relations director of HIAS and assistant director of media relations at Yeshiva University.