Second Circuit panel lukewarm on Jewish CUNYs professors’ claims over union BDS endorsement

MANHATTAN (CN) — A federal appeals court panel appeared skeptical on Monday as it was asked to revive a constitutional challenge by a group of self-proclaimed Zionist Jewish professors at the City University of New York system against the college’s faculty union over diverging beliefs on the contentious Israel-Palestine conflict.

The group of six CUNY teachers claim 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.

Fairness Center attorney Nathan J. McGrath represented the professors before the Second Circuit Court of Appeals on Monday morning.

“Current events make it more important by the day for my clients to be able to separate from the union. The union has taken positions on political and collective bargaining issues they disagree with, including, among other things identifying Israel as an ‘apartheid state’,” McGrath said during oral arguments.

“My clients have religious and moral convictions about the state of Israel, and the union’s position on this is unacceptable to them, but New York law requires them to accept the union’s representation and to speak through them.”

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."

"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.

Palestinians started the global BDS 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 acknowledges 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.”

The group of tenured professors and adjunct lecturers of accounting, math and business across several CUNY schools brought the civil rights challenge against the Professional Staff Congress last year 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 educators argue that the lower court’s reliance on Knight was misguided. They distinguish that case, 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.

During oral arguments on Monday, Senior U.S. Circuit Judge Guido Calabresi was quick to signal his presumption that the panel would be bound by the Supreme Court’s precedent.

“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,” the Clinton-appointed judge asked, appearing remotely from his Connecticut office via Zoom 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?”

Cleland B. Welton, an attorney for the state of New York representing CUNY, agreed with the notion that the professors’ claims are foreclosed by Knight and asked the panel to affirm the lower court’s judgment.

Altshuler Berzon attorney Scott Kronland, representing CUNY and the union, argued that even if Knight were not dispositive of the professors’ compelled speech and compelled expressive association arguments, those arguments would be meritless because they lack any basis in relevant First Amendment precedents.

“Plaintiffs need not join PSC, financially support PSC, or express or disseminate any unwanted message,” Kronland wrote in an appeals brief. “They also retain their full First Amendment rights to speak and petition about all issues, whether individually or through groups.”

U.S. Circuit Judge Alison Nathan asked the professors’ counsel several times to expound on their ask for “practical terms” and how that may be distinguished from the status quo.

Judges Calabresi and Nathan were joined on the panel by Senior U.S. Circuit Judge Amayla Kearse, who was appointed to the Second Circuit by President Jimmy Carter in 1979.

The panel did not rule on the appeal before ending Monday's hearing.

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