from Lacks v. City University of New YorkNew York Trial Court Judge Gina Abadi ruled on Friday:
The plaintiff is an observant Jewish professor at Kingsborough Community College, which is affiliated with the City University of New York [City University of New York]. The defendant, the Professional Staff Congress (union), is a union of teaching staff. The defendant, the New Caucus of the Professional Staff Congress (New Caucus), was the political party of the union. [Defendants] Wetzel and Perea are professors at Kingsborough University and members of the new caucus.
On February 26, 2021, the plaintiff filed a lawsuit alleging… hostile work environment discrimination based on religion[,] ……revenge [for making discrimination complaints]… [and] Assault and false imprisonment.
The plaintiffs allege that they and other devoutly Jewish faculty and staff at Kingsborough faced pervasive anti-religious discrimination from a specific segment of the faculty, the Progressive Faculty Caucus (PFC) of Kingsborough Community College ) leader of the faculty body. The plaintiffs allege that members of the new caucus worked with PFC members to lead campus elections and call for the ouster of Kingsborough’s rabbinical faculty, administrators, department chairs and others. The plaintiffs allege that Wetzel and Perea actually participated in, aided and abetted the conduct that led to their discrimination and retaliation charges.
The plaintiffs allege that, among many alleged acts of discrimination, the PFC denied entry to every observant Jewish applicant, including Lax; that the PFC and new caucus members lobbied against Lax and other observant Jewish candidates for campus elections ; PFC members call for the removal of observant clergy, including Lax; PFC and New Caucus members write in a communist newspaper about their ties to the “Zionist network” among Kingsborough’s clergy “fight” and made similar comments in a publicly released campus survey; discussions among Wetzel and others that devout Jews were unfit to be PFC members; Perea initiated a A vicious and ruthless campaign to have Goldstein fired because he is a Zionist; An internal PFC email cited the need for “violence against Zionists on campus”; Kingsborough Anti-Semitic flyers were distributed on campus; a portrait of Goldstein’s father was defaced; nails were found in the tires of Lax and Goldstein’s cars; PFC members called for the plaintiff to be relieved of his position at Kingsborough.
[Defendants] Wetzel…and Perea[ cross-claimed, arguing, among other things,] CUNY is a governmental entity directly bound by the First Amendment… Additionally, CUNY is committed to protecting their academic freedom and free speech in their contract with them, in their faculty handbook, in statements on their website, and elsewhere , they relied on these to their detriment. [Their cross-claim] Further charges that Wetzel and Perea used their academic freedom and First Amendment rights to express progressive political views and criticism [plaintiff] Goldstein, the plaintiff claimed it was anti-Semitic. It also claimed that Wetzel and Perea’s political criticism of Israel was not anti-Semitic and that the complaint’s specific claims about their alleged anti-Semitic conduct were frivolous.
Additionally, Wetzel and Perea’s second cross-claim alleges that the plaintiffs have used existing processes and procedures to complain about them to CUNY, such as filing an administrative complaint of discrimination alleging that they posed a danger to the plaintiffs and the CUNY community or security risks and claimed they violated other CUNY codes and rules. It alleges that the plaintiffs’ intent in launching all of their moves against Wetzel and Perea was to punish them and retaliate for their progressive political views and criticism of Goldstein. It claims “CUNY allowed and facilitated this retaliatory conduct by failing to supervise” [p]accuse and protect [their] Academic freedom.
Wetzel and Perea noted in this cross-claim that, for example, when the plaintiffs filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that they organized an anti-discrimination event on Friday night (Friday Night Events), in order Excluding Sabbath-keeping Jewish members, CUNY failed to notify them that these EEOC complaints had been filed. Wetzel and Perea said that, based on information and belief, CUNY also failed to vigorously protect their interests and academic freedom in equal employment opportunity. They claim that the plaintiffs’ retaliatory measures were carried out in cahoots with CUNY and successfully shut down their free speech and academic freedoms, such as the cancellation of Friday night’s event…
The court dismissed the cross-claim on the following grounds:
Wetzel and Perea…claim that CUNY allowed and facilitated the plaintiffs’ retaliation by failing to supervise the plaintiffs and protect the academic freedom of the cross-plaintiffs. However, they did not specify how CUNY failed to supervise the plaintiffs and how this alleged failure constituted a First Amendment violation. This intersectional assertion also lacks any factual allegation about how Wetzel and Perea’s interests and academic freedoms are not protected by CUNY. While Wetzel and Perea claimed that CUNY did not provide them with notice of the EEOC complaint against them, they did not cite any legal authority to suggest that CUNY had any legal obligation to provide them with such notice.
If Wetzel and Perea claim that CUNY has a duty to prevent plaintiffs from “using existing processes and procedures, such as filing administrative complaints of discrimination,” including filing an equal employment opportunity complaint, then any such action by CUNY could It is a violation of federal, state and local anti-discrimination laws. See Vance v. Ball State University. (2013) (In employee lawsuit against university, U.S. Supreme Court noted evidence that employer “effectively prevented the filing of complaint” was relevant to employer’s liability for hostile work environment Title VII claims and retaliation against employee) Employee complaints of racial harassment).
This seems right to me, although I think the judge may have erred on the subject of academic freedom:
Academic freedom generally “includes the notion that universities have the right to set their own rules for academic standards, … the right to decide for themselves who can teach on academic grounds, … the right to set their own criteria for promotion and then to assess the suitability of candidates before Promotions under their leadership, etc. heim in daniel, 81 F.4th 212, 231 (2d Cir. 2023) (internal quotation marks and citations omitted). While Wetzel and Perea are professors, not the university, they did not in any way accuse CUNY of failing to protect their academic speech or the free exchange of ideas in the classroom.
It is suggested that Heim v. Danielonly “universities” and not “professors” enjoy “academic freedom”, which seems to be inconsistent with Heim’s Recognize “the wealth of authority that supports individual educators’ interests in academic freedom.”
The court also dismissed Wetzel and Perea’s contract claims on the basis that the internal rules allegedly violated were not binding and that “Wetzel and Perea…failed to allege that Plaintiffs had engaged in any breach of contract.” . [those rules] or how CUNY tolerates, accepts, or promotes any of these behaviors”:
Wetzel and Perea relied on a general policy statement that preceded the Henderson Rule, which stated that academic freedom and sanctuaries on college campuses “cannot be used by those who would subordinate intellectual freedom to political ends or Those who violate a code of conduct established for political purposes also rely on Rules 1 and 5 of the Henderson Rules.
The first rule of Henderson states:
“A member of the academic community must not intentionally obstruct and/or forcibly prevent others from exercising their rights. Nor must he [or she] Interfere with the educational processes or facilities of the institution, or the rights of those wishing to avail themselves of any instructional, personal, administrative, recreational and community services of the institution.
Rule 5 of the Henderson Rules states:
“Every member of the academic community or invited guest has the right to advocate for his/her position without fear of physical, verbal or other abuse from others who espouse conflicting views. Members of the academic community and others on the academic premises are not allowed to Use language or take actions that are reasonably likely to provoke or encourage physical violence by demonstrators, protest opponents, or spectators.
The Henderson Rules do not provide for any specific disciplinary actions, procedures or remedies that CUNY must follow in response to alleged violations of such rules. Instead, the Henderson Rules provide that the CUNY Chairman of the Board of Trustees has “full discretion [the Henderson Rules] Take effect.[a]South Australian public university system. CUNY complies with federal, state, and municipal laws and regulations regarding nondiscrimination.
