A decision by the Second Court of Appeals affirming a lower court ruling that six professors—five of whom are Jewish—at the City University of New York (CUNY) must accept the representation of their bargaining unit will be appealed to the Supreme Court.
The professors believe the Professional Staff Congress (PSC) “hates them” because it is “anti-Semitic, anti-Jewish and anti-Israel” and are seeking to overturn the “exclusive representation” required under New York’s Taylor Law. However, the court ruled on March 18 that because of long-established precedent only the Supreme Court is empowered to make such a ruling.
Lower courts have based their decisions 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 case is being handled pro bono by the Fairness Center. John Bouder, a spokesperson for the center, said a petition will be filed within a few months, likely pushing any decision on whether the Court takes up the case until the next term, which begins in October. It is centered on a violation of the professors’ First Amendment rights of freedom of speech and association.
The six professors are: Avraham Goldstein, Michael Goldstein, Frimette Kass-Shraibman, Mitchell Langbert, Jeffrey Lax and Maria Pagano, five of whom are observant Jews and Zionists.
Pagano, the non-Jewish plaintiff, resigned about 2010 after the PSC refused to represent her in a grievance proceeding against CUNY, according to the court filings.
A ruling in the professors’ favor would overturn provisions of New York’s Public Employees’ Fair Employment Act, known as the Taylor Law. The law separates public employees into distinct bargaining units that share “a community of interest,” in this case the PSC. If the suit is successful, public-sector unions in New York and elsewhere might no longer be able to force representation on all members of a collective bargaining unit.
Fairness Center President Nathan McGrath, who is general counsel for the case—which is representing the professors with the National Right to Work Foundation—had previously told The Jewish Link he believed it was unique because it is based on antisemitism and the union’s perceived loathing of the professors.
After the latest ruling he said, “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.”
Among the issues cited by the professors are the PSC’s support of the boycott, divestment and sanctions campaign (BDS) against Israel, which has prompted the resignation of a number of professors from the union and has been condemned by staff, students, politicians and Jewish organizations as antisemitic. As a result, the professors believe the PSC should be viewed as a “hostile political” organization.
In particularm court papers cite a June 2021 “Resolution in Support of the Palestinian People.” As required by the resolution, “chapter-level meetings” were held, which the professors stated have fomented anti-Jewish and anti-Israel sentiment among other members of the union.
The professors believe the movement “vilifies Zionism, disparages the national identity of Jews, and seeks to destroy Israel as a sovereign state.”
In the 2018 Janus v. AFSCME case the Supreme Court held that 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.” Their union dues were returned to the professors after the suit was filed.
However, the suit argues that under the Taylor Law the issues now faced by the six as nonmembers include restriction of services and being treated as “second-class” employees.
“We conclude that PSC’s exclusive representation of Plaintiffs in collective bargaining with CUNY does not violate the First Amendment,” wrote the court in the latest decision. adding it also rejects the challenge to the provision in the Taylor Law limiting the duty of an exclusive representative to represent nonunion members in certain proceedings.
Debra 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.
