The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Court Rejects Allegedly Anti-Zionist Professors' Claims That University Should Have Stopped Jewish Professors from Filing Religious Discrimination Complaints Against Them


From Lax v. CUNY, decided Friday by N.Y. trial court judge Gina Abadi:

Plaintiffs are observant Jewish professors at Kingsborough Community College (Kingsborough), which is part of CUNY [City University of New York]. Defendant Professional Staff Congress (the Union) is the labor union for the faculty. Defendant the New Caucus of the Professional Staff Congress (New Caucus) is a political party of the Union. [Defendants] Wetzel and Perea were professors at Kingsborough and members of the New Caucus.

On February 26, 2021, plaintiffs filed this action alleging … hostile work environment discrimination on the basis of religion[,] … retaliation [for making discrimination complaints], … [and] assault and false imprisonment.

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kingsborough Community College (PFC) and are also members of the New Caucus. Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kingsborough. Plaintiffs allege that Wetzel and Perea actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that the PFC denied entry to every observant Jewish applicant, including Lax; that the PFC and the New Caucus members lobbied against Lax and other observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members, including Lax; that the PFC and the New Caucus members wrote in a communist newspaper regarding their "struggle" against a "network of Zionists" among the faculty at Kingsborough, and made similar comments in a publicly distributed campus survey; that there were discussions between Wetzel and others that observant Jews were undesirable for PFC membership; that Perea engaged in a malicious and relentless campaign to get Goldstein fired because he was a Zionist; that an internal PFC email mentioned the need to "bring violence to the Zionists on campus"; that anti-Semitic flyers were distributed on the Kingsborough campus; that a portrait of Goldstein's father was defaced; that nails were found in the tires of cars belonging to Lax and Goldstein; and that the PFC members called for plaintiffs' removal from their jobs at Kingsborough.

[Defendants] Wetzel … and Perea[ cross-claimed, arguing, among other things,] that CUNY is a government entity directly subject to the First Amendment … and that, in addition, CUNY has promised to protect their academic freedom and freedom of speech in assertions made in its contract with them, in its faculty handbook, on its website, and elsewhere, on which they relied to their detriment. [Their cross-claim] further alleges that Wetzel and Perea have used their academic freedom and First Amendment rights to utter progressive political views and criticism of [plaintiff] Goldstein, which plaintiffs claimed were anti-Semitic. It also alleges that Wetzel and Perea's political criticism of Israel is not anti-Semitic, and that the complaint's specific assertions against them regarding their alleged actions of anti-Semitism are frivolous.

In addition, Wetzel and Perea's second cross-claim alleges that plaintiffs have complained to CUNY about them using available processes and procedures, such as making administrative complaints of discrimination, asserting that they were a danger or security risk to plaintiffs and the CUNY community, and stating that they breached other CUNY codes and rules. It asserts that plaintiffs' intentions that motivated all of their initiatives against Wetzel and Perea are to punish them and retaliate for their politically progressive views and criticism of Goldstein. It alleges that "CUNY has permitted and facilitated such retaliation by its failure to supervise [p]laintiffs and to protect [their] academic freedom."

Wetzel and Perea, in this cross-claim, state that for example, when plaintiffs filed United States Equal Employment Opportunity Commission (EEOC) complaints implicating them in organizing an anti-discrimination event for a Friday night (the Friday Night Event), with the purpose of excluding Sabbath-observant Jewish members, CUNY failed to give them notice that these EEOC complaints had been filed. Wetzel and Perea state, upon information and belief, that CUNY also failed assertively to protect their interests and academic freedom at the EEOC. They allege that plaintiffs' retaliatory measures were carried out with CUNY's complicity and have succeeded in shutting down their free speech and academic freedom, since for example, the Friday Night Event was cancelled….

The court rejected the cross-claims, reasoning that, among other things:

Wetzel and Perea … assert that CUNY has permitted and facilitated retaliation by plaintiffs by its failure to supervise plaintiffs and to protect cross-claimants' academic freedom. However, they do not specify how CUNY failed to supervise plaintiffs and how such alleged failure amounts to a violation of the First Amendment. This cross claim is also devoid of any factual allegations as to how Wetzel and Perea's interests and academic freedom were not protected by CUNY. While Wetzel and Perea allege that CUNY did not give them notice that EEOC complaints had been filed against it, they fail to cite to any legal authority indicating that CUNY was under any legal obligation to provide them with such notice.

To the extent that Wetzel and Perea purport to assert that CUNY was obligated to discourage plaintiffs from "using available processes and procedures, such as the filing of administrative complaints of discrimination," including filing EEOC complaints, any such conduct by CUNY could constitute a violation of federal, state, and local anti-discrimination law. See Vance v Ball State Univ. (2013) (in an action brought by a university employee against a university, the U.S. Supreme Court stated that evidence that an employer "effectively discouraged complaints from being filed" are relevant to employer liability for Title VII claims for hostile work environment and retaliation for an employee's complaints about racial harassment).

That seems correct to me, though I think the judge may have erred in this aside about academic freedom:

Academic freedom generally "encompasses concepts like the University's right to make its own rules concerning academic standards, … its prerogative to determine for itself on academic grounds who may teach, … its right to set its own criteria for promotion and then to evaluate a candidate's fitness for promotion under them, … and so on." Heim v Daniel, 81 F.4th 212, 231 (2d Cir. 2023) (internal quotation marks and citations omitted). While Wetzel and Perea are professors, and not a university, they, in any event, fail to allege how CUNY did not protect their academic speech or free exchange of ideas in the classroom.

The suggestion that, under Heim v. Daniel, only "a university" and not "professors" enjoy "academic freedom," seems inconsistent with Heim's acknowledging "the wealth of authority championing individual educators' interest in academic freedom."

 The court also rejected Wetzel's and Perea's contract claims, both on the grounds that the internal rules that were allegedly violated weren't binding contracts, and on the grounds that "Wetzel and Perea … fail to allege what actions plaintiffs took in violation of [those rules] or how CUNY tolerated, accepted, or facilitated any of those actions":

Wetzel and Perea rely upon the general policy statement preceding the Henderson Rules, which provides that academic freedom and the sanctuary of the university campus "cannot be invoked by those who would subordinate intellectual freedom to political ends, or who violate the norms of conduct established to protect that freedom." They also rely upon Rule 1 and Rule 5 of the Henderson Rules.

Rule 1 of the Henderson Rules provides:

"A member of the academic community shall not intentionally obstruct and/or forcibly prevent others from the exercise of their rights. Nor shall he [or she] interfere with the institution's educational processes or facilities, or the rights of those who wish to avail themselves of any of the institution's instructional, personal, administrative, recreational, and community services."

Rule 5 of the Henderson Rules provides:

"Each member of the academic community or an invited guest has the right to advocate his position without having to fear abuse, physical, verbal, or otherwise, from others supporting conflicting points of view. Members of the academic community and other persons on the college grounds shall not use language or take actions reasonably likely to provoke or encourage physical violence by demonstrators, those demonstrated against, or spectators."

The Henderson Rules do not set forth any specific disciplinary action, procedure, or remedy that CUNY is required to follow in responding to an alleged violation of such rules. Instead, the Henderson Rules provide that the President of the CUNY Board holds "full discretionary power in carrying [the Henderson Rules] into effect." The court also notes that in the "Additional Policies" section of the Henderson Rules, it sets forth that "[a]s a public university system. CUNY adheres to federal, state and city laws and regulations regarding non-discrimination." Thus, assertions that CUNY should have enforced the Henderson Rules by stifling plaintiffs from complaining of religious discrimination against them would violate this policy….