MANHATTAN (CN) — A federal appeals court panel on Monday affirmed a lower court’s dismissal of First Amendment claims brought by a group of self-proclaimed Zionist Jewish professors at the City University of New York system, who say they were forced to associate with a public sector union they describe as antisemitic and anti-Israel.
The group of tenured professors and adjunct lecturers of accounting, math and business who work at several CUNY schools brought their civil rights challenge against the Professional Staff Congress two years ago in the Southern District of New York, where U.S. District Judge Paul Engelmayer dismissed the case as barred by precedent from the U.S. Supreme Court’s 1984 decision in Minnesota State Board for Community Colleges v. Knight, which held that exclusive-representative collective bargaining does not unconstitutionally compel speech or expressive association.
On appeal, the professors argued that the lower court’s reliance on Knight was misguided and should not foreclose on their First Amendment claims, but the Second Circuit panel found that the professors’ interpretation of the underlying case was "far too narrow."
"In Knight, the court explained that excluding non-union members from ‘meet and confer’ sessions to discuss policy questions separate from collective bargaining ‘in no way restrained [the employees’] freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative,'” the panel wrote in its unsigned per curiam opinion.
“Therefore, restricting attendance at these meetings to the exclusive representative violated neither the plaintiffs’ free speech nor associational rights,” the appeals panel concluded.
Nathan McGrath, president and general counsel for the Fairness Center, said the professors look forward to petitioning the U.S. Supreme Court to hear their case.
“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," he wrote in a statement Monday afternoon. "It’s hard to imagine a clearer illustration of the harm caused by exclusive representation."
The group of six CUNY teachers claimed the trade union that represents some 30,000 faculty and professional staff at the City University of New York campuses, the Professional Staff Congress, infringed on their free speech and associational rights by forcing them to accept what they view as a “hostile political group” in support of Palestine as their exclusive agent for speaking and contracting with their government employer.
On appeal the professors sought to distinguish Knight, which primarily dealt with public employees’ ability to participate in union meetings, from their own argument that being forced to accept the bargaining power and representation of union officials violates their First Amendment free association rights.
"The professors — all but one of whom are Jews and Zionists — want nothing to do with PSC because, among other reasons, PSC supports the so-called ‘Boycott, Divestment and Sanctions’ (“BDS”) movement that the professors believe vilifies Zionism, disparages the national identity of Jews, and seeks to destroy Israel as a sovereign state,” the professors wrote in their appeals brief.
The professors’ grievance with the collective bargaining body over its stance on Israel predates the current war in Gaza sparked by the Oct. 7 coordinated attacks on Israel by Hamas: It stems from the union’s adoption of a June 2021 resolution, titled "Resolution in Support of the Palestinian People,” which the professors deemed “antisemitic, anti-Jewish, and anti-Israel."
During oral arguments last fall, the appeals panel signaled that it was hesitant to breathe new life into the professors’ complaint.
“Didn’t the Supreme Court in Knight deal with this issue? … Aren’t you asking us to go against what the Supreme Court has already said?” Senior U.S. Circuit Judge Guido Calabresi asked, appearing remotely from his Connecticut office via videoconference. “Maybe some day they’ll go with you, but if they haven’t, aren’t we bound to the line that they’ve drawn?”
Calabresi, a Clinton appointee, was joined on the panel by U.S. Circuit Judges Amalya L. Kearse, a Carter appointee; and Alison Nathan, a Biden appointee.
Palestinians started the global Boycott, Divestment and Sanctions movement to protest Israel’s occupation of Gaza and the West Bank, Palestinian territories adjacent to Israel. It advocates for refraining from doing business with the Israeli government or companies that benefit from Israel’s occupation of the territories and purported violations of Palestinians’ human rights.
The union's pro-Palestine resolution condemns “the massacre of Palestinians by the Israeli state” and says that Israel’s “pattern and practice of dispossession and expansion of settlements, dating back to its establishment as a settler colonial state in 1948, has been found to be illegal under international law, international human rights organizations such as Human Rights Watch and B’Tselem have designated these practices of Israel as ‘apartheid’ and a regime of legalized racial discrimination perpetrated against the Palestinian people.”
Neither party's representatives immediately responded to requests for comment Monday.
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