Amicus Brief: Goldstein v. Professional Staff Congress/CUNY

This case concerns whether the First Amendment protects the right of Jewish professors to disassociate themselves from the representation of a union they view as antisemitic. The plaintiffs are six professors at City University of New York (CUNY), five of whom are observant Jews and all of whom are Zionists. The professors are represented by the Professional Staff Congress (PSC) union, but they want nothing to do with PSC because, among other reasons, the union has engaged in conduct they deem antisemitic and anti-Israel, including adopting a BDS resolution and calling Israel an “apartheid” state. 

The professors have been unable to dissociate themselves from PSC because New York State made the union the “exclusive representative” of all CUNY faculty, which designation vests the union with legal authority to speak and contract for the professors, notwithstanding their opposition. In Janus v. AFSCME (2018), the Supreme Court recognized that “[d]esignating a union as the employees’ exclusive representative substantially restricts the rights of individual employees” and inflicts “a significant impingement on associational freedoms that would not be tolerated in other contexts.”

Although the professors resigned their union memberships and were able to cease funding the union post-Janus, the Second Circuit concluded that forcing them to accept PSC representation does not warrant First Amendment scrutiny. The court reasoned that the Supreme Court’s 1984 decision in Minnesota State Board for Community Colleges v. Knight forecloses constitutional challenges to regimes of exclusive representation on any grounds. The professors maintain this is incorrect because Knight addressed a different issue—whether individuals have a constitutional right to participate in union bargaining sessions—and not whether individuals have a right to disaffiliate completely from an exclusive union representative. Thus they’ve filed a cert petition.

MI has now joined the Upper Midwest Law Center on an amicus brief supporting that petition. We argue that (1) antisemitism and anti-Zionism are raging through university-related unions; (2) Knight doesn’t foreclose the professors’ First Amendment claims against being forced to associate with those unions; (3) the Supreme Court’s compelled-speech and -association jurisprudence supports the petitioners’ claims; and (4) academic freedom requires heightened protections for freedom of speech and association.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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