CUNY’s Faculty Union and the First Amendment

The Supreme Court will consider two key cases relating to higher education this term. Fisher could curtail the use of racial preferences in admissions. Friedrichs could require higher-education unions to represent only those members who agree with the union’s usefulness.

As currently structured, public employee unions, including those at colleges and universities, must refund the portion of dues related to the union’s political activity. A central argument in the Friedrichs case is whether all activity of public employee unions, including those that represent professors at colleges and universities, constitutes political spending, from which employees who reject the union’s ideological message should be exempt.

It’s hard to imagine a better example of why the Supreme Court should side with the Friedrichs petitioners than the record of the CUNY faculty union, the Professional Staff Congress (PSC). The union’s leadership, headed by de facto President-for-Life Barbara Bowen, is intellectually stuck in 1968 or 1969, perpetually manning the barricades at the Columbia or Cornell campus protests. Its ineffective negotiating tactics (most recently union members showed up in the early morning, outside the CUNY chancellor’s apartment, banging pots and pans, and then fancied themselves 1960s-style protesters, engaging in a form of civil disobedience so comical that even the New York Times had trouble portraying it sympathetically) have helped leave CUNY faculty without a contract for more than six years.

The Brooklyn PSC branch just finished up a campaign for professors to use class time to distribute postcards that students will sign for later distribution to state legislators. The postcards demand more money from the legislature—but all of it from general appropriations, with no tuition increases. From a tactical angle, it might seem odd for a union that’s failed to deliver pay increases for years to publicly oppose at least one new revenue stream (a tuition increase) that might be devoted to faculty salaries. From an ethical angle, it might seem odd for a union to seek to use class time (for which, of course, students pay) for the students to engage in political activity.

From a constitutional angle, the union’s campaign targets one of the key issues in Friedrich—does a demand for a state legislature to take a specific act (in this case, spending more money, through more taxpayers’ resources) implicate the First Amendment? Does the union have a legal right to seize dues money from non-members to advance a policy position those non-members might oppose, even if the ostensible purpose is union-related rather than overtly political?

The union as a whole, meanwhile, is currently devoting union resources to a mobilization campaign seeking to authorize Bowen to call an illegal strike. (New York’s Taylor Law prohibits public employees from striking, while allowing public employee unions to deduct agency fees from non-union members. Bowen wants to set aside the first aspect of the Taylor Law but continue to enforce the second.)

As with the postcard campaign, this is a union activity that will have a political impact—if the union flouts the law, at the very least public resources will need to be devoted to increased NYPD activity protecting campuses, and likely to increased court action to prosecute the law-breakers. Does the union have a legal right to seize dues money from non-members to fund its mobilization campaign, with a long-term goal of violating state law?

The last time Bowen and her leadership team considered violating the law was 2005. In response, several dozen CUNY faculty members (including me) urged the union to follow the law and negotiate in good faith. The signatories also affirmed, “as individual CUNY professors, that we will abide by New York state law regardless of the ultimate course that the union chooses to take.” Hopefully, a comparable number of CUNY faculty members will speak up this time, as well.

Surely most public employee unions are not as extreme (and ineffective) as the PSC. But current law allows public employee unions like the PSC to spend non-members’ required agency fee payments on calls for state resources to be used in a particular way. In any other context, this would be recognized as constitutionally protected political speech. Will Friedrichs end this seemingly flagrant violation of the First Amendment?

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