Amicus Curiae Brief — Avraham Goldstein, et al., Petitioners v. Professional Staff Congress/CUNY, et al.

No. 24-71

In the Supreme Court of the United States

AVRAHAM GOLDSTEIN, et al.,

v.

Petitioners,

PROFESSIONAL STAFF CONGRESS/CUNY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR JEWISH COALITION FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

J. Michael Connolly

Thomas S. Vaseliou

Counsel of Record

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tvaseliou@consovoymccarthy.com

August 22, 2024

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Table of Cited Authorities .......................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................1

Reasons for Granting the Petition ..............................4

I.

Exclusive representation by the

Professional Staff Congress compels Jews

represented by it to mouth vilification of

Israel in conflict with their faith. ..................4

A. Forcing Jewish professors to mouth

support for anti-Israel messages

conflicts with central aspects of their

faith and may violate religious

prohibitions. .............................................5

B. PSC expresses antisemitic and antiIsrael messages that are imputed to

those it exclusively represents. .............12

II. The First Amendment prohibits the

forced association between religious

minorities and a union that espouses

views in conflict with their faith. .................19

Conclusion .................................................................22

ii

TABLE OF CITED AUTHORITIES

Cases

Adams v. Teamsters Union Loc. 429,

2022 WL 186045 (3d Cir. Jan. 20) .......................3

Akers v. Md. State Educ. Ass’n,

990 F.3d 375 (4th Cir. 2021) ................................3

Ams. for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) ............................................19

Bennett v. AFSCME,

991 F.3d 724 (7th Cir. 2021) ................................3

Emp. Div., Dep’t of Hum. Res. of Ore. v. Smith,

494 U.S. 872 (1990) .................................... 2, 3, 21

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ..............................................3

Goldstein v. Pro. Staff Cong./CUNY,

96 F.4th 345 (2d Cir. 2024) ..............................2, 3

Hendrickson v. AFSCME,

992 F.3d 950 (10th Cir. 2021) ..............................3

Janus v. AFSCME,

585 U.S. 878 (2018) ................................ 19, 20, 21

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ........................................ 3, 21

Lane v. Franks,

573 U.S. 228 (2014) ............................................21

Mentele v. Inslee,

916 F.3d 783 (9th Cir. 2019) ................................3

iii

Minn. State Bd. for Cmty. Colleges v. Knight,

465 U.S. 271 (1984) ........................................ 3, 21

Ocol v. Chi. Tchrs. Union,

982 F.3d 529 (7th Cir. 2020) ................................3

Peltz-Steele v. UMass Fac. Fed’n,

60 F.4th 1 (1st Cir. 2023) .....................................3

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ............................................19

Sambrano v. United Airlines, Inc.,

2022 WL 486610 (5th Cir. Feb. 17) ...................21

Shelton v. Tucker,

364 U.S. 479 (1960) ............................................19

Snyder v. Phelps,

562 U.S. 443 (2011) ...................................... 20, 21

Thompson v. Marietta Educ. Ass’n,

972 F.3d 809 (6th Cir. 2020) .................... 3, 21, 22

Uradnik v. Inter Fac. Org.,

2 F.4th 722 (8th Cir. 2021) ..................................3

W.V. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................................19

Statutes

N.Y. Civ. Serv. Law §204 ...................................... 1, 12

Other Authorities

5 Facts About the Jewish People’s Ancestral

Connection to the Land of Israel,

Am. Jewish Comm. (Feb. 26, 2024),

perma.cc/493Q-5HAC ................................... 6, 8, 9

iv

A Brief History of Antisemitism, Anti-Defamation

League (2020), perma.cc/3342-TFLP .................10

Adelman, What Is the Temple Mount?,

Chabad.org, perma.cc/FK2P-MA3C .....................7

Ahren, Germany Denounces BDS as ‘Anti-Semitic,’

Reminiscent of Nazi-era Boycotts,

Times of Israel (May 17, 2019),

perma.cc/3XCT-FPDT .........................................11

Alessandrini, PSC Academic Freedom Committee

Letter to Lehman College (Feb. 23, 2024),

perma.cc/5ZEW-CV5J .........................................14

Alevsky, Dayenu,

Chabad.org, perma.cc/BCT9-3BZM......................8

Anti-Israel Protesters Glorify Terror Groups,

Violence, Anti-Defamation League,

perma.cc/936H-WBS3 .........................................15

Anti-Semitism: State Anti-BDS Legislation,

Jewish Virtual Library,

perma.cc/D4K4-SRXZ .........................................20

Aponte & Bhat, City Workers Ditch Unions, Skip

Dues, Following Supreme Court Ruling, The City

(Oct. 25, 2023), perma.cc/YE3A-5PVX ...............18

Bergstein, Daniel the Prophet of the Bible,

Chabad.org, perma.cc/6CRP-PUKX .....................8

Bureau of Lab. Stat., Union Members—2023, U.S.

Dep’t of Lab. (Jan. 23, 2024), bit.ly/46YX6Tq ......4

Campanile et al., CUNY Axes Panel on ‘Globalizing

the Intifada!’ That Was Ripped as ‘Guide for

v

Junior Terrorists,’ N.Y. Post (Feb. 5, 2024),

perma.cc/D2W5-CJBL ........................................14

Campanile, Columbia Has ‘Waved the White Flag’ By

Failing to Expel Even One Student Who Occupied

Campus Building: House Report, N.Y. Post (Aug.

19, 2024), perma.cc/HD97-QDBK.......................15

Campanile, CUNY Professors’ Union Rebukes Israel

in Pro-Palestinian Resolution, N.Y. Post (Jun. 13,

2021), perma.cc/6HSX-EKLC .............................18

Campanile, CUNY Professors’ Union Rebukes Israel

in Pro-Palestinian Resolution, N.Y. Post (June

13, 2021), perma.cc/D9GE-GKUT ......................13

Campanile, CUNY School of Law Faces State Probe

over Anti-Jewish Bias After BDS Support, N.Y.

Post (Feb. 23, 2023), perma.cc/YD7Q-H7DE .....16

Campanile, CUNY Settles Federal Complaints

Alleging Antisemitism, Islamophobia: ‘Step in the

right direction,’ N.Y. Post (June 17, 2024),

perma.cc/4VXM-CD7N........................................16

Chaim Miller, The Choseness of the Land of Israel,

Chabad.org, perma.cc/5YYT-5HCC ......................7

Citron, Lashon Hara,

Chabad.org, perma.cc/H3C2-PADV .....................9

Clarke, CUNY Workers Against Austerity, The

Jacobin (May 22, 2024),

perma.cc/YN3C-YCGL ........................................18

Cozzarelli et al., CUNY Union Joins Call for

Ceasefire in Gaza, The Left Voice (Dec. 15, 2023),

perma.cc/MJS5-X9FC .........................................18

vi

Davis, Academic Freedom is the Union’s Fight, and

All of Ours, PSC-CUNY (Dec. 20, 2023),

perma.cc/3TT5-KVXX .........................................17

Deuteronomy 11:12 .....................................................6

Feldman, Giving in Halachah: What Are Priorities in

Tzedakah, perma.cc/U6QS-5VJP .........................9

Genesis 28:16-17..........................................................7

Germany Labels Israel Boycott Movement BDS AntiSemitic, BBC (May 17, 2019),

perma.cc/JT8P-J457............................................11

Hecht, The 613 Commandments (Mitzvot),

Chabad.org, perma.cc/ELB2-UV3S ......................6

Israel-Gaza Ceasefire Holds Despite Jerusalem

Clash, BBC (May 21, 2021),

perma.cc/SYU7-L6FR .........................................14

JCRL-Amicus-Br. in Fulton v. City of Philadelphia,

No. 19-123 (U.S. May 27, 2020) ............................3

JCRL-Amicus-Br. in Tingley v. Ferguson, No. 22-942

(U.S. Apr. 27, 2023)...............................................3

Kettles, Harvard Grad Union Endorses BDS and

Calls for Ceasefire, Drawing Member Criticism,

The Harvard Crimson (Nov. 13, 2023),

perma.cc/LL3N-G7PL .........................................20

Lashon Hara, Halachipedia,

perma.cc/X4K8-L6WG ..........................................9

Lax, How CUNY Became America’s Most AntiSemitic University, N.Y. Post (Apr. 6, 2023),

perma.cc/8DUX-MCKR .......................................16

vii

Margolin, It Is Time to Declare the Truth About the

Jews and Israel, Chabad.org, perma.cc/HUD3D4RS......................................................................6

Netanyahu: ‘Antisemitism is the world’s oldest

hatred,’ Wash. Post (July 24, 2024),

wapo.st/46ZY4i7 ..................................................10

No Cold War with China, PSC/CUNY (May 2021),

perma.cc/A56R-5TQ9 ..........................................13

Pierre, Jewish CUNY Professor Found Discriminated

Against After Faculty Group Intentionally Held

Meetings on Shabbat, The Algemeiner (Nov. 19,

2021), perma.cc/4FZQ-XAVS ..............................16

Pompeo, Determination of the Secretary of State on

Atrocities in Xinjiang, U.S. Dep’t of State (Jan.

19, 2021), perma.cc/JP3Q-NRPW .......................14

Posner, 23 Facts About the Land of Israel Every Jew

Should Know, Chabad.org,

perma.cc/QK4D-WNQ7 ............................. 5, 6, 7, 8

Posner, What is Tsedakah?, Chabad.org,

perma.cc/3WVN-CZVG .........................................9

PSC-Answering-Br. in Goldstein v. PSC, 2023 WL

4930843 (2d Cir. July 27, 2023) .........................17

PSC-CUNY (@PSC_CUNY),

X, x.com/PSC_CUNY ..........................................17

PSC-CUNY,

perma.cc/UH4V-YS36 .........................................17

Rashi on Genesis 1:1,

Sefaria, perma.cc/JK4N-GHEA ............................6

viii

Rashi, Commentary on the Tanakh,

Sefaria, perma.cc/W9N2-H5P8 .............................9

Resolution in Support of the Palestinian People, PSC

(June 10, 2021), perma.cc/89ZV-8FSD ...............13

Shurpin, Why Do We Face East When Praying? Or Do

We?, Chabad.org, perma.cc/ZXH6-6CQZ..........7, 8

Slogan: “From the River to the Sea Palestine Will be

Free,” Anti-Defamation League (Oct. 26, 2023),

perma.cc/GA6F-C2TE .........................................11

Slogan: Globalize the Intifada, Anti-Defamation

League (Jan. 16, 2024),

perma.cc/EXP2-SCG5 ................................... 11, 12

Sperling, How Many Mitzvot Can I Keep?,

Yeshiva.co, perma.cc/VZR4-9REW .......................6

Statement on the Arrest of Students Demonstrating at

Columbia, PSC-CUNY (Apr. 22, 2024),

perma.cc/E6FZ-9RWP .........................................15

Tehillim (Psalms) 137:5-6,

perma.cc/VC38-H9QR ...........................................9

The Boycott, Divestment and Sanctions Campaign

(BDS), Anti-Defamation League (May 24, 2022),

perma.cc/9ZP9-LGBT..........................................10

The Mitzvah of Living in Israel, Nefesh B’Nefesh,

perma.cc/X3H9-8JVB ............................................6

The Rebbe, The Land of Israel, Chabad.org,

perma.cc/5D6B-AMJK ..........................................6

The State of Antisemitism in America 2023, Am.

Jewish Comm., perma.cc/FRC5-KFKY ..............10

ix

Touré, CUNY Workers Rally for a New Contract,

Politico (Feb. 27, 2023),

perma.cc/Q8AJ-WLJW........................................18

Vasquez, California Campus Workers Become First

Major Local Union to Endorse BDS Against

Israel, In These Times (Dec. 29, 2014),

perma.cc/6XRS-HUSZ.........................................20

Vasquez, Looking Back to Understand this Moment

at CUNY, New York Amsterdam News (May 16,

2024), perma.cc/JJM9-82Z2 ................................17

Vasquez, UE Becomes First National Union in U.S.

To Endorse BDS Against Israel, In These Times

(Sept. 1, 2015), perma.cc/YKE6-W7MY .............20

What is Passover (Pesach)?, Chabad.org,

perma.cc/A2HG-RSXN ..........................................8

What is Tisha B’Av?,

Hillel Int’l, perma.cc/AXX5-8RB3 ........................8

Wulfsohn, New Yorker Union Accused of Promoting

Israel’s Genocide for Backing Palestinians ‘From

the River to the Sea,’ Fox News (May 19, 2021),

perma.cc/LY4L-B872 ..........................................21

INTEREST OF AMICUS CURIAE*

Jewish Coalition for Religious Liberty is an incorporated group of Jewish lawyers, rabbis, and communal professionals. JCRL is devoted to ensuring that

First Amendment jurisprudence enables the flourishing of diverse religious viewpoints and practices in the

United States. As adherents of a minority religion,

amicus also has a unique interest in ensuring that

First Amendment jurisprudence protects against compelled association with groups that denigrate religious beliefs held by JCRL’s members. To that end,

JCRL urges the Court to grant certiorari and protect

First Amendment freedoms for all Americans, including religious minorities.

SUMMARY OF ARGUMENT

New York’s Taylor Law forces certain public employees to choose between their jobs and their faith. It

requires public employees to have an exclusive representative to negotiate on their behalf “with respect to

wages, hours, and other terms and conditions of employment.” N.Y. Civ. Serv. Law §204. The Professional

Staff Congress is a union that exclusively represents

professors that work for the City University of New

York. Though professors at CUNY need not be mem-

* Under Rule 37.2, amicus curiae provided timely notice of

its intention to file this brief. Under Rule 37.6, no counsel for a

party authored this brief in whole or in part, and no person other

than amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

bers of PSC, PSC is the only union permitted to represent them and hence to speak for them on certain

topics.

Unfortunately, that union takes views on Israel

that petitioners find “anti-Semitic and anti-Israel.”

Pet.5. The law’s exclusive representation scheme compels these employees to associate with messages they

vehemently disagree with. Worse, here, the law requires religious minorities (particularly, Jews) to associate with a union that denigrates central tenets of

their faith. In fact, making such statements may be

prohibited by Jewish law.

The Second Circuit, however, saw no problem:

“The prudential pressure that Plaintiffs may reasonably feel to join the union—despite their deep objections to its political positions—‘is no different from the

pressure to join a majority party that persons in the

minority always feel’ and thus ‘does not create an unconstitutional inhibition on associational freedom.’”

Goldstein v. Pro. Staff Cong./CUNY, 96 F.4th 345,

350 (2d Cir. 2024). The Second Circuit’s conception of

this case is fundamentally flawed. This case isn’t just

about a mere political objection to the union; five of

the six petitioners are Jews that can have religious

objections to the union’s statements and conduct toward Israel. See Emp. Div., Dep’t of Hum. Res. of Ore.

v. Smith, 494 U.S. 872, 882 (1990) (“[I]t is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free

Exercise Clause concerns.”). The clauses of the First

Amendment “work in tandem” and “doubly protec[t]”

religion. Kennedy v. Bremerton Sch. Dist., 597 U.S.

3

507, 523 (2022). This “hybrid situation” makes this

case an ideal vehicle for this Court to reevaluate exclusive-representation schemes that raise grave First

Amendment concerns. Smith, 494 U.S. at 82.1

And the rule adopted below is not limited to

CUNY, or even the States in the Second Circuit. Most

circuits have addressed materially similar claims, and

all of them say this Court’s decision in Minnesota

State Board for Community Colleges v. Knight, 465

U.S. 271 (1984), ties their hands.2 If this Court does

not grant the petition and reverse the erroneous interpretation of this Court’s precedent, the negative effects will reverberate beyond the present case. Of the

7.8 million Americans represented by a public sector

1 Smith has obviously drawn significant criticism, including

its “hybrid” language. See, e.g., Fulton v. City of Philadelphia,

593 U.S. 522, 545-618 (2021) (Alito, J., concurring in the judgment). As JCRL has explained many times, Smith is wrongly decided. See, e.g., JCRL-Amicus-Br. in Fulton v. City of Philadelphia, No. 19-123 (U.S. May 27, 2020); JCRL-Amicus-Br. in Tingley v. Ferguson, No. 22-942 (U.S. Apr. 27, 2023). But at the very

least, the presence of Smith’s “special category” makes this case

a better vehicle for considering the questions presented. Fulton,

593 U.S. at 599-600 (Alito, J., concurring in the judgment).

2 See, e.g., Peltz-Steele v. UMass Fac. Fed’n, 60 F.4th 1 (1st

Cir. 2023); Goldstein v. Pro. Staff Cong./CUNY, 96 F.4th 345 (2d

Cir. 2024); Adams v. Teamsters Union Loc. 429, 2022 WL 186045

(3d Cir. Jan. 20); Akers v. Md. State Educ. Ass’n, 990 F.3d 375

(4th Cir. 2021); Thompson v. Marietta Educ. Ass’n, 972 F.3d 809

(6th Cir. 2020); Bennett v. AFSCME, 991 F.3d 724 (7th Cir.

2021); Ocol v. Chi. Tchrs. Union, 982 F.3d 529 (7th Cir. 2020);

Uradnik v. Inter Fac. Org., 2 F.4th 722 (8th Cir. 2021); Mentele

v. Inslee, 916 F.3d 783 (9th Cir. 2019); Hendrickson v. AFSCME,

992 F.3d 950 (10th Cir. 2021).

4

union, 10% are not union members. Bureau of Lab.

Stat., Union Members—2023, U.S. Dep’t of Lab. (Jan.

23, 2024), bit.ly/46YX6Tq. But despite not being members, petitioners remain bound to the union because

the union must exclusively represent employees like

them.

In short, New York’s exclusive-representation

scheme puts Jewish professors in an untenable position where they are associated with a union that denigrates core tenets of their faith. The First Amendment doesn’t allow that. The Court should grant the

petition and do what no court can do right now: restore

the First Amendment to its proper scope and vindicate

individuals’ free-speech and free-exercise rights.

REASONS FOR GRANTING THE PETITION

I. Exclusive representation by the

Professional Staff Congress compels Jews

represented by it to mouth vilification of

Israel in conflict with their faith.

The Professional Staff Congress (PSC) is a union

that exclusively represents professors that work for

the City University of New York (CUNY). This union

declares abhorrent views about the State of Israel and

the Jewish people. Though professors that disagree

with the union (including religious Jews) can decline

to be a member of the union, they cannot escape the

union’s representation. In other words, these employees cannot disassociate from the union and its antisemitic and anti-Israel views—even when these views

contradict core tenets of their faith. New York’s exclusive-representation scheme thus compels its members

to mouth support for views they disagree with, and

5

possibly even consider themselves religiously prohibited from endorsing.

A. Forcing Jewish professors to mouth

support for anti-Israel messages

conflicts with central aspects of their

faith and may violate religious

prohibitions.

There are many compelling reasons Jews want to

disassociate from an organization that denigrates core

aspects of their religion, lest they impliedly mouth

support for ideas at odds with their faith. The tenets

of Judaism include wide-ranging requirements that

touch on many aspects of public and private life. For

example, Judaism dictates what food Jews may eat

(e.g., kosher), what clothes they may wear (e.g., shatnez), what words they may say (e.g., lashon hara), and

even where they live (e.g., walking distance of a synagogue). Judaism also says a lot about Israel—the Holy

Land of the Jewish people. Significant aspects of religious Jews’ life involve Israel, including how they

pray, how they celebrate holidays and weddings, and

how they give charity. Forced association with PSC’s

smearing of the State of Israel and the Jewish people

denigrates many Jews’ faith in violation of the First

Amendment.

1. The State of Israel is central to Jews and their

faith. Israel is the Jews’ Holy Land, given by G-d (Hashem) to the Jewish people. See, e.g., Posner, 23 Facts

About the Land of Israel Every Jew Should Know,

Chabad.org, perma.cc/QK4D-WNQ7; 5 Facts About

the Jewish People’s Ancestral Connection to the Land

of Israel, Am. Jewish Comm. (Feb. 26, 2024),

6

perma.cc/493Q-5HAC.3 Its “very space is sacred, designated so by G-d.” 23 Facts, supra. Hashem is always

looking after it. See 23 Facts, supra; Deuteronomy

11:12 (“a land the L-rd, your G-d, looks after; the eyes

of L-rd your G-d are always upon it, from the beginning of the year to the end of the year”).

Israel also plays a central role in Jewish law. The

Torah has 613 commandments (mitzvot)—248 positive commandments (what an adherent must do) and

365 negative commandments (what an adherent must

not do)—that govern Jewish conduct. Many can be fulfilled anywhere, but some can be fulfilled only in Israel. See Hecht, The 613 Commandments (Mitzvot),

Chabad.org, perma.cc/ELB2-UV3S. At least according

to some sources, two of them, for example, require living in Israel: “the national obligation to settle the land

and the obligation for the individual to reside in the

land.” The Mitzvah of Living in Israel, Nefesh

B’Nefesh, perma.cc/X3H9-8JVB. And according to

many rabbis, “the true fulfillment of all the commands

is only in the land of Israel, where the mitzvot take on

a special holiness and higher level of fulfillment.”

Sperling, How Many Mitzvot Can I Keep?, Yeshiva.co,

perma.cc/VZR4-9REW. As one of the most well-known

3 See also, e.g., Margolin, It Is Time to Declare the Truth

About the Jews and Israel, Chabad.org, perma.cc/HUD3-D4RS

(“The Torah grants Israel to the Jews and obligates them to protect her people.”); The Rebbe, The Land of Israel, Chabad.org,

perma.cc/5D6B-AMJK; Rashi on Genesis 1:1, Sefaria,

perma.cc/JK4N-GHEA (“‘All the earth belongs to the Holy One,

blessed be He; He created it and gave it to whom He pleased.

When He willed He gave it to [the Jewish people], and when He

willed He took it from them and gave it to [the Jewish people].”).

7

Torah scholars, the Rambam, explained: “One should

not emigrate from the Land of Israel, except for the

purposes of studying Torah or in order to get married[;] so, too, one may leave for the purposes of business. However, one may not leave on a permanent basis …. Our Sages said that any person who lives in the

Land of Israel will be forgiven for his sins ... even if he

walks four cubits there, he will merit life in the World

to Come. So, too if a person is buried there, he is

atoned for. A person should always live in the Land of

Israel.” Chaim Miller, The Choseness of the Land of

Israel, Chabad.org, perma.cc/5YYT-5HCC (cleaned

up).

Israel is significant to Judaic prayer as well. The

Talmud, a compilation of discussions on Judaic law,

instructs Jews to pray toward Israel, specifically Jerusalem and the Temple Mount. See Shurpin, Why Do

We Face East When Praying? Or Do We?, Chabad.org,

perma.cc/ZXH6-6CQZ; see also Adelman, What Is the

Temple Mount?, Chabad.org, perma.cc/FK2P-MA3C

(explaining why the Temple is “the holiest place on

earth”). So “even though [Jews] may not physically be

in the Holy Land,” their “prayers ascend to heaven

through it.” 23 Facts, supra; accord Face East, supra.

This idea “is rooted” in the Torah. See ibid. (“[T]he notion that our prayers ascend to heaven through the

Temple Mount is rooted in the Book of Genesis, where

Jacob states regarding the Temple Mount, ‘How awesome is this place! This is none other than the house

of G-d, and this is the gate of heaven.’” (quoting Genesis 28:16-17)). Further, in the Book of Daniel, which

is included in the canon of sacred Jewish writings,

Daniel prayed toward Jerusalem while in captivity,

8

and today, Jews follow this tradition by directing their

prayers toward Israel. Face East, supra; 23 Facts, supra; see Bergstein, Daniel the Prophet of the Bible,

Chabad.org, perma.cc/6CRP-PUKX.

Jews also celebrate Israel during holidays. For example, the Passover Seder is an important and wellknown Jewish tradition, which tells the story of the

Jews’ exodus from Egypt and entrance into Israel. See

What

is

Passover

(Pesach)?,

Chabad.org,

perma.cc/A2HG-RSXN. One song Jews sing during

the Seder is “Dayenu,” and it recounts all the wonders

that Hashem (G-d) did for the Jewish people at that

time. Alevsky, Dayenu, Chabad.org, perma.cc/BCT93BZM. The song starts with the exodus, and it ends

with Hashem taking the Jewish people into Israel and

building the Temple. Ibid. And at the end of Seder,

Jews commonly cheer, “Next year in Jerusalem!” 5

Facts, supra.

Consider also the fast of Tisha B’Av. Though the

Jewish Calendar is marked by several fasts, Tisha

B’Av is one of them because it is the saddest day on

the Jewish Calendar. What is Tisha B’Av?, Hillel Int’l,

perma.cc/AXX5-8RB3. And it is the saddest day because of what happened in Israel: the destruction of

the first and second Holy Temples in Jerusalem. See

What is Tisha B’Av, Chabad.org, perma.cc/4VYARAJE.

Israel is significant for Jewish weddings too. The

famous broken-glass ritual commemorates the destruction of the Temple and the Jewish exile from Israel in 70 AD. See Stolper, Why Do We Still Mourn,

9

Aish, perma.cc/DY9K-K6Y4; 5 Facts, supra. And just

before the glass ritual, Psalm 137 is often sung, which

says, “If I forget you, O Jerusalem, may my right hand

forget its skill; may my tongue cling to my palate if I

do not remember you, if I do not bring up Jerusalem

at the beginning of my joy.” Tehillim (Psalms) 137:56, perma.cc/VC38-H9QR. Even at one of the happiest

moments in their life, Jews are thinking about Israel.

Giving charity (tzedakah) to Israel is also a high

priority. To be sure, there are many worthwhile

causes in the world and every person has limited

funds. But there is a Jewish religious injunction to ensure Israel is a priority in charitable giving. See Feldman, Giving in Halachah: What Are Priorities in Tzedakah, perma.cc/U6QS-5VJP; Posner, What is

Tsedakah?, Chabad.org, perma.cc/3WVN-CZVG.

Moreover, forcing Jews to disparage Israel, or associate with groups that do, can be considered sinful

for some Jews. According to Rashi, the most famous

and widely read Jewish Biblical commentator, the

spies from the Book of Numbers sinned—and were

later punished—because they slandered the land of

Israel. Rashi, Commentary on the Tanakh, Sefaria,

perma.cc/W9N2-H5P8; accord Citron, Lashon Hara,

Chabad.org, perma.cc/H3C2-PADV. As a result, some

Jews believe it is sinful to slander the land of Israel.

See Lashon Hara, Halachipedia, perma.cc/X4K8L6WG (“It is forbidden to say Lashon Hara about the

land of Israel, its fruits, its people or any other aspect

of it.”).

10

2. Though America has provided an unprecedently safe and welcoming environment for Jewish

people, antisemitism unfortunately is and has long

been common. See A Brief History of Antisemitism,

Anti-Defamation League (2020), perma.cc/3342TFLP. Indeed, it’s often said to be “the world’s oldest

hatred.” Netanyahu: ‘Antisemitism is the world’s oldest hatred,’ Wash. Post (July 24, 2024),

wapo.st/46ZY4i7. And it has only increased recently.

The State of Antisemitism in America 2023, Am. Jewish Comm., perma.cc/FRC5-KFKY.

Today, there are many ways groups and individuals engage in anti-Israel and antisemitic conduct.

Take, for example, the Boycott, Divestment, and Sanctions (BDS) movement. BDS is an international campaign trying to delegitimize, isolate, and pressure Israel through economic, cultural, and diplomatic boycotts. The Boycott, Divestment and Sanctions Campaign (BDS), Anti-Defamation League (May 24,

2022), perma.cc/9ZP9-LGBT. The movement uses “divisive and inaccurate terms” to refer to Israel to “demonize the Jewish state and those who support its existence.” Ibid. The movement’s “founding goals”—to

“effectively reject or ignore the Jewish people’s right

11

of self-determination” and to “eradicat[e] … the

world’s only Jewish state”—are antisemitic. Ibid.4

Take also the trope “From the River to the Sea.”

See Slogan: “From the River to the Sea Palestine Will

be Free,” Anti-Defamation League (Oct. 26, 2023),

perma.cc/GA6F-C2TE. This “antisemitic slogan” calls

for “a Palestinian state extending from the Jordan

River to the Mediterranean Sea,” which is “territory

that includes the State of Israel.” Ibid. So the chant

means “the dismantling of the Jewish state” and

“denying the Jewish right to self-determination, including through the removal of Jews from their ancestral homeland.” Ibid.

Or consider the slogan “Globalize the Intifada.”

This phrase refers “to two periods of Palestinian violence against Israel” where “Palestinian terrorists

commit[ted] indiscriminate acts of violence against Israelis, including suicide bombings, shootings and

stabbings,” and other atrocities. Slogan: Globalize the

Intifada, Anti-Defamation League (Jan. 16, 2024),

perma.cc/EXP2-SCG5. The chant is “generally under-

4 Given the movement’s goals, many—including the German

Parliament—have criticized this movement as antisemitic and

pointed to stark parallels between BDS and Nazi-era boycotts of

Jewish businesses. See, e.g., Ahren, Germany Denounces BDS as

‘Anti-Semitic,’ Reminiscent of Nazi-era Boycotts, Times of Israel

(May 17, 2019), perma.cc/3XCT-FPDT; Germany Labels Israel

Boycott Movement BDS Anti-Semitic, BBC (May 17, 2019),

perma.cc/JT8P-J457.

12

stood as a call for indiscriminate violence against Israel, and potentially against Jews and Jewish institutions worldwide.” Ibid.

One could go on and on and on again about the

many other ways Israel is central to Judaism. And one

could go on and on about the ways groups and individuals engage in antisemitism today. But even just a

sample makes clear that New York’s exclusive-representation law forces Jewish professors to associate

with a union that denigrates (at best) the State of Israel. In so doing, Jewish professors must implicitly endorse defamatory language directed at the same land

that they pray toward, support the celebration of the

very thing they mourn on the saddest day of the Jewish Calendar (e.g., the destruction of the Temple

Mount and Jewish sovereignty in Israel), and for

some, sinfully violate religious injunction (e.g., slandering Israel). And they must do all this (and more) to

keep their job. The First Amendment forbids this

forced association.

B. PSC expresses antisemitic and antiIsrael messages that are imputed to

those it exclusively represents.

New York’s Taylor Law requires public employees

within the same state-appointed bargaining unit to

designate an exclusive representative to negotiate on

their behalf “with respect to wages, hours, and other

terms and conditions of employment.” N.Y. Civ. Serv.

Law §204. Though professors at CUNY need not be

members of PSC, PSC is the only union permitted to

represent them. In other words, all employees must

delegate their speech to this union to some degree.

13

But PSC spews antisemitic and anti-Israel views

that the six petitioners (five of them are Jews) wish to

disassociate from. For example, in 2021, PSC issued

two resolutions on international matters: one addressing communist China; the other condemning the State

of Israel. One might think that the union would have

condemned China’s long litany of oppression, humanrights abuses, religious persecution, and crushing dissent. But he would be mistaken. The first resolution

condemned the “incessant China-bashing by the

mainstream media” and proclaimed PSC’s commitment to “solidarity with Chinese fellow-workers, educators and scholars.” No Cold War with China,

PSC/CUNY (May 2021), perma.cc/A56R-5TQ9. The

union’s condemnation was instead reserved solely for

Israel, the world’s single Jewish state. A month later,

PSC condemned Israel, calling it an “apartheid” state

and a “settler colonial state” and condemned, what it

called, “the massacre of Palestinians by the Israeli

state.” Resolution in Support of the Palestinian People,

PSC (June 10, 2021), perma.cc/89ZV-8FSD. It also announced it would consider adopting a BDS policy

against Israel. Ibid.; see Campanile, CUNY Professors’

Union Rebukes Israel in Pro-Palestinian Resolution,

N.Y. Post (June 13, 2021), perma.cc/D9GE-GKUT;

App.74a (“PSC adopted the Resolution regarding

what it termed ‘the continued subjection of Palestinians to the state-supported displacement, occupation,

and use of lethal force by Israel,’ and requir[ed] chapter-level discussion of possible support by PSC for the

BDS movement.”).

PSC’s antisemitism was blatant. It defended a

Communist regime just four months after the U.S.

14

government determined China committed genocide

against a minority religious group, but condemned the

world’s only Jewish state just days after Hamas

launched over 4,300 rockets at Israeli cities. See Pompeo, Determination of the Secretary of State on Atrocities in Xinjiang, U.S. Dep’t of State (Jan. 19, 2021),

perma.cc/JP3Q-NRPW; Campanile, supra; IsraelGaza Ceasefire Holds Despite Jerusalem Clash, BBC

(May 21, 2021), perma.cc/SYU7-L6FR.

There is more. In February 2024, CUNY canceled

an event titled “Globalize the Intifada! Mapping

Struggles for Palestine from the Streets to Our Classrooms.” Campanile et al., CUNY Axes Panel on ‘Globalizing the Intifada!’ That Was Ripped as ‘Guide for

Junior Terrorists,’ N.Y. Post (Feb. 5, 2024),

perma.cc/D2W5-CJBL. A former CUNY trustee called

the “Globalize the Intifada!” event “a how to guide for

junior terrorists.” Ibid. PSC, however, objected to the

event’s cancellation. Its Academic Freedom Committee, charged with defending “academic freedom as a

professional and contractual right of all CUNY professional staff,” wrote to CUNY leaders to protest “in the

strongest possible terms the cancellation of [the]

panel.” Alessandrini, PSC Academic Freedom Committee Letter to Lehman College (Feb. 23, 2024),

perma.cc/5ZEW-CV5J. PSC speaks for all faculty and

staff on contractual matters, and because the PSC letter explicitly invoked CUNY’s contractual commitment to academic freedom, one could reasonably infer

that the complaint was issued on behalf of all CUNY

faculty and staff—not just PSC members.

15

Elsewhere, PSC supported antisemitic and antiIsrael protestors on college campuses soon after October 7. Indeed, in a press release, PSC bragged that it

“represent[s] 30,000 City University of New York employees” and stressed that it “joins fellow unionists

and academics in condemning the recent actions of

Columbia University administration to suppress student protest.” Statement on the Arrest of Students

Demonstrating at Columbia, PSC-CUNY (Apr. 22,

2024), perma.cc/E6FZ-9RWP. Never mind that the

protest encampment referred to in PSC’s statement

“repeatedly expressed explicit support for violence,”

shouted “From the River to the Sea” and “Globalize

the Intifada,” and eventually led to protestors seizing

a university building. See, e.g., Anti-Israel Protesters

Glorify Terror Groups, Violence, Anti-Defamation

League (last updated Apr. 26, 2024), perma.cc/936HWBS3; Campanile, Columbia Has ‘Waved the White

Flag’ By Failing to Expel Even One Student Who Occupied Campus Building: House Report, N.Y. Post

(Aug. 19, 2024), perma.cc/HD97-QDBK.

PSC’s anti-Israel agenda mirrors CUNY’s own antisemitism problems. Indeed, CUNY has been described as “America’s most anti-Semitic university.”

Lax, How CUNY Became America’s Most Anti-Semitic

16

University, N.Y. Post (Apr. 6, 2023), perma.cc/8DUXMCKR.5

PSC’s antisemitic views are attributed to Jewish

professors that vehemently disagree with them because they are forced to be represented by the union.

As a result, New York Law says Jewish professors

must authorize an antisemitic union to negotiate on

their behalf with the nation’s most antisemitic university and forbids them from dissociating from this union.

PSC even seems to encourage the perception that

the union’s views on Israel speak for not only those

professors who are members but also those who it represents. For example, on its homepage, PSC stresses

that it “is the union that represents 30,000 faculty and

staff at the City University of New York and the

5 For example, in 2021, the U.S. Equal Employment Opportunity Commission found CUNY had discriminated against a

Jewish professor. The EEOC found that a university caucus intentionally scheduled its meetings (on the Sabbath) when the

professor could not attend because of his religious observances.

Pierre, Jewish CUNY Professor Found Discriminated Against After Faculty Group Intentionally Held Meetings on Shabbat, The

Algemeiner (Nov. 19, 2021), perma.cc/4FZQ-XAVS. About a year

after the EEOC report, CUNY’s law school faculty council endorsed the BDS movement against Israel. Campanile, CUNY

School of Law Faces State Probe over Anti-Jewish Bias After BDS

Support, N.Y. Post (Feb. 23, 2023), perma.cc/YD7Q-H7DE. And

more recently, CUNY settled a federal investigation into

whether it violated Title VI by failing to respond to antisemitic

and Islamophobic behavior on campus. Campanile, CUNY Settles Federal Complaints Alleging Antisemitism, Islamophobia:

‘Step in the right direction,’ N.Y. Post (June 17, 2024),

perma.cc/4VXM-CD7N.

17

CUNY

Research

Foundation.”

PSC-CUNY,

perma.cc/UH4V-YS36. PSC’s court filings proclaim itself as “the collective bargaining representative for a

bargaining unit of about 30,000 CUNY instructional

staff.” PSC-Answering-Br. in Goldstein v. PSC, 2023

WL 4930843, at *5 (2d Cir. July 27, 2023). Even its bio

on social media platforms—where PSC endorses political candidates and weighs in on sensitive issues—describes PSC as “[t]he union that represents more than

30,000 faculty and staff at the City University of New

York (CUNY).” PSC-CUNY (@PSC_CUNY), X,

x.com/PSC_CUNY.

PSC’s leading officials also purport to speak on behalf of all represented faculty and staff. PSC’s president recently issued an open letter on academic freedom, and in his biography, he called himself the “President of The Professional Staff Congress (NYSUT,

AFT Local 2334), which represents 30,000 faculty and

professional staff at the City University of New York.”

Davis, Academic Freedom is the Union’s Fight, and All

of Ours, PSC-CUNY (Dec. 20, 2023), perma.cc/3TT5KVXX. PSC’s vice president also refers to herself as

leading “the union representing CUNY faculty and

staff.” Vasquez, Looking Back to Understand this Moment at CUNY, New York Amsterdam News (May 16,

2024), perma.cc/JJM9-82Z2.

The media also seems to think that PSC speaks

for all faculty and staff within the bargaining unit. Politico opened an article about PSC by calling it the union that “represents 30,000 faculty and staff at the

City University of New York.” Touré, CUNY Workers

Rally for a New Contract, Politico (Feb. 27, 2023),

18

perma.cc/Q8AJ-WLJW. Similarly, the Left Voice

wrote: “The PSC CUNY union, which represents more

than 30,000 faculty and staff at the City University of

New York[,] has joined dozens of other major unions

to demand a ceasefire in Gaza.” Cozzarelli et al.,

CUNY Union Joins Call for Ceasefire in Gaza, The

Left Voice (Dec. 15, 2023), perma.cc/MJS5-X9FC. The

New York Post also appears to share this belief. See

Campanile, CUNY Professors’ Union Rebukes Israel

in Pro-Palestinian Resolution, N.Y. Post (Jun. 13,

2021), perma.cc/6HSX-EKLC (publishing an article

saying “the union representing CUNY professors has

passed a one-sided resolution rebuking Israel for recent attacks on Palestinians”). And a Jacobin article

conflated union representation with union membership, calling PSC “the union representing thirty thousand faculty and other staff at the university” and

later referring to “PSC’s thirty thousand members.”

Clarke, CUNY Workers Against Austerity, The Jacobin (May 22, 2024), perma.cc/YN3C-YCGL.6

All this is to say: PSC and CUNY have an antisemitism problem. They also have a First Amendment

problem. PSC, CUNY’s only union for its professors

and other staff, openly supports causes that “see[k] to

6 JCRL is not aware of a readily available public source containing PSC’s exact membership count, but membership numbers must be lower than the 30,000 represented faculty and staff.

That’s because membership “decline[d] precipitously” after this

Court issued its Janus decision, and in 2023, only 51% of CUNY’s

part-time staff and 88% of its full-time staff were PSC union

members. Aponte & Bhat, City Workers Ditch Unions, Skip Dues,

Following Supreme Court Ruling, The City (Oct. 25, 2023),

perma.cc/YE3A-5PVX.

19

destroy Israel as a sovereign state.” Pet.5. New York’s

exclusive-representation scheme forces employees to

implicitly mouth support for these views that they

find detestable and violative of their faith, and prevents them from speaking against these views by disassociating from the union. Contra the Second Circuit,

that violates the First Amendment.

II. The First Amendment prohibits the forced

association between religious minorities

and a union that espouses views in conflict

with their faith.

The First Amendment prohibits what the Second

Circuit allowed: forcing public employees to be exclusively represented by a union that endorses views in

direct conflict with the employees’ faith. “Freedom of

association … plainly presupposes a freedom not to associate.” Roberts v. U.S. Jaycees, 468 U.S. 609, 623

(1984); accord Ams. for Prosperity Found. v. Bonta,

594 U.S. 595, 606 (2021). Associational freedoms are

important because the “right of free association … lies

at the foundation of a free society.” Shelton v. Tucker,

364 U.S. 479, 486 (1960). “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning” and “require[s] ‘even more

immediate and urgent grounds’ than a law demanding

silence.” Janus v. AFSCME, 585 U.S. 878, 893 (2018).

That’s why even strong government interests, like

promoting “national unity,” “patriotism,” and “national security” during World War II, cannot justify

compelling association and speech. W.V. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 634, 640-41 (1943).

20

“Designating a union as the employees’ exclusive

representative substantially restricts the rights of individual employees.” Janus, 585 U.S. at 887. Exclusive representation, this Court has said, is a “significant impingement upon associational freedoms.” Id.

at 893 (cleaned up). That is especially true here. The

issues petitioners cannot disassociate from are matters of public concern. They involve “controversial

subjects” like “minority religions” and politics that

“are undoubtedly matters of profound value and concern to the public.” Id. at 913-14; accord Snyder v.

Phelps, 562 U.S. 443, 453 (2011) (“Speech deals with

matters of public concern when it can be fairly considered as relating to any matter of political, social, or

other concern to the community, or when it is a subject

of legitimate news interest.” (cleaned up)).

That the issues here extend beyond this case

shows that these are indeed matters of public concern.

Indeed, 38 States have adopted laws, executive orders, or resolutions that reject BDS. Anti-Semitism:

State Anti-BDS Legislation, Jewish Virtual Library,

perma.cc/D4K4-SRXZ. On the other hand, unions

have endorsed BDS, including university unions. See,

e.g., Kettles, Harvard Grad Union Endorses BDS and

Calls for Ceasefire, Drawing Member Criticism, The

Harvard Crimson (Nov. 13, 2023), perma.cc/LL3NG7PL; Vasquez, California Campus Workers Become

First Major Local Union to Endorse BDS Against Israel, In These Times (Dec. 29, 2014), perma.cc/6XRSHUSZ; Vasquez, UE Becomes First National Union in

U.S. To Endorse BDS Against Israel, In These Times

(Sept. 1, 2015), perma.cc/YKE6-W7MY. Unions have

also issued statements with antisemitic tropes, such

21

as “From the River to the Sea.” See Wulfsohn, New

Yorker Union Accused of Promoting Israel’s Genocide

for Backing Palestinians ‘From the River to the Sea,’

Fox News (May 19, 2021), perma.cc/LY4L-B872.

Thus, the speech petitioners wish to convey by dissociating from PSC “occupies the highest rung of the

hierarchy of First Amendment values, and is entitled

to special protection.” Snyder, 562 U.S. at 452; accord

Janus, 585 U.S. at 914. It “lies at the heart of the First

Amendment.” Lane v. Franks, 573 U.S. 228, 235

(2014). Even more so here because this case presents

a “hybrid situation” where “Free Exercise Clause concerns” reinforce the “freedom of association grounds.”

Smith 494 U.S. at 881-82; accord Kennedy, 597 U.S.

at 523 (“doubly protects” religion). Despite the importance of the issues on which PSC is speaking, exclusive representation renders employees nearly powerless to disassociate themselves from the union’s

speech. The First Amendment does not allow States

to force Jews to choose between their job and their

faith. Cf. Sambrano v. United Airlines, Inc., 2022 WL

486610, at *8 (5th Cir. Feb. 17) (“plaintiffs had suffered irreparable harm from being coerced into a

choice between their job(s) and their jab(s) or between

their beliefs and their benefits” (cleaned up)).

And only this Court can do something about it. As

Judge Thapar explained, States that have “take-it-orleave-it system” like New York’s are “in direct conflict

with the principles enunciated in Janus.” Thompson,

972 F.3d at 811-12. After most circuits have all said

the same thing—that this Court’s precedent prevents

them from squaring Janus and Knight—it is time for

22

this Court to address these “First Amendment questions of considerable importance.” Id. at 815. Otherwise, public employees that practice their faith will

continue to be forced to choose between their faith and

their job in violation of their First Amendment rights.

CONCLUSION

This Court should grant certiorari.

J. Michael Connolly

Thomas S. Vaseliou

Counsel of Record

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tvaseliou@consovoymccarthy.com

August 22, 2024

Attorneys for Amicus Curiae