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.,

Petitioners,

v.

PROFESSIONAL STAFF CONGRESS/CUNY, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF A PPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF GOLDWATER

INSTITUTE IN SUPPORT OF PETITIONERS

TIMOTHY SANDEFUR*

PARKER JACKSON

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION AT

THE GOLDWATER INSTITUTE

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

* Counsel of Record

Counsel for Amicus Curiae Goldwater Institute

116914

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The State of New York is prohibiting several

professors, all but one of whom are Jews, from dissociating

themselves from a union’s representation to protest its

anti-Semitic and anti-Israel conduct and other expressive

activities. The question presented is:

Whether it violates the First Amendment for a state

to prohibit individuals from dissociating from a union’s

representation to protest that union’s expressive activities?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

IDENTITY AND INTERESTS OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

SUMMARY OF REASONS FOR GRANTING

THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

REASONS FOR GRANTING THE PETITION. . . . . .4

I.

The Court should grant the petition so it can

clarify its associational rights caselaw . . . . . . . . .6

A. The Court should clarify its dicta

i n Ja n u s r e g a r d i n g e x c l u s i ve

representation . . . . . . . . . . . . . . . . . . . . . . . . .6

B. The Court should clarify the status

of Knight, wh ich rest ed on the

now-overruled Abood . . . . . . . . . . . . . . . . . . .8

II. The Court should grant the petition so it can

adequately protect the First Amendment

right to disassociate . . . . . . . . . . . . . . . . . . . . . . .11

III. Public-sector unions now focus more on

partisan political advocacy than on dutifully

representing public employees in labor

negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Abood v. Detroit Board of Education,

431 U.S. 209 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . 8-11

Agostini v. Felton,

521 U.S. 203 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Anderson Fed’n of Teachers v. Rokita,

 1R WK&LUÀOHG0D\  SHQGLQJ . . .1, 2

Anderson v. Arizona Bd. of Regents,

CV2024-005713 (Ariz. Super. Ct.

 ÀOHG0DU  SHQGLQJ . . . . . . . . . . . . . . . . . . . .2

Belgau v. Inslee,

975 F.3d 940 (9th Cir. 2020),

cert. denied, 141 S. Ct. 2795 (2021) . . . . . . . . . . . . . . .6

Borgelt v. City of Austin,

No. 22-1149, 2024 WL 3210046 (Tex. 2024). . . . . . . . .2

Boudreaux v. Louisiana State Bar Ass’n.,

86 F.4th 620 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . .1

iv

Cited Authorities

Page

Chauffeurs, Teamsters, Warehousemen &

Helpers Union, Loc. No. 377,

No. 8-CB-9415-1, 2004 WL 298352

(N.L.R.B. Feb. 11, 2004) . . . . . . . . . . . . . . . . . . . . . . .12

Crowe v. Oregon State Bar,

989 F.3d 714 (9th Cir. 2021). . . . . . . . . . . . . . . . . . . . . .1

Cruzan by Cruzan v.

Dir., Missouri Dep’t of Health,

497 U.S. 261 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Cummings v. Connell,

316 F.3d 886 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . .12

Debont v. City of Poway,

No. 98CV0502-K(LAB),

1998 WL 415844 (S.D. Cal. Apr. 14, 1998). . . . . . . . .12

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

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Ex parte Garland,

71 U.S. (4 Wall.) 333 (1866) . . . . . . . . . . . . . . . . . . . . . .8

Faretta v. California,

422 U.S. 806 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Gilmore v. Gallego,

No. CV-23-0130-PR,

2024 WL 3590669 (Ariz. 2024) . . . . . . . . . . . . . . . . . . .2

v

Cited Authorities

Page

Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos.,

515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Janus v. AFSCME,

585 U.S. 878 (2018) . . . . . . . . . . . . . . . . 1, 3-8, 11, 12, 17

Jarrett v. Marion Cnty.,

No. 6:20-cv-01049-MK, 2021 WL 65493

(D. Or. Jan. 6, 2021),

aff ’d 2023 WL 4399242 (9th Cir July 7, 2023),

cert. denied, 144 S. Ct. 494 (2023) . . . . . . . . . . . . . . . .6

Jarrett v. SEIU Loc. 503,

144 S. Ct. 494 (2023). . . . . . . . . . . . . . . . . . . . . . . . . .5, 6

Keller v. State Bar of California,

496 U.S. 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Loc. 58, Int’l Bhd. of Elec. Workers

(IBEW v. NLRB),

888 F.3d 1313 (D.C. Cir. 2018). . . . . . . . . . . . . . . . . . .12

Local 647, UAW,

197 N.L.R.B. 608 (1972). . . . . . . . . . . . . . . . . . . . . . . .12

Local 74, SEIU,

323 N.L.R.B. 289 (1997) . . . . . . . . . . . . . . . . . . . . . . .12

Marlin Rockwell Corp. (Auto. Workers, Loc. 197),

114 N.L.R.B. 553 (1955). . . . . . . . . . . . . . . . . . . . . . . .12

vi

Cited Authorities

Page

McCahon v. Pennsylvania Tpk. Comm’n,

491 F. Supp.2d 522 (M.D. Pa. 2007) . . . . . . . . . . . . . .12

Mentele v. Inslee,

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

cert. denied, 140 S. Ct. 114 (2019). . . . . . . . . . . . . . . . .5

Meyer v. Grant,

486 U.S. 414 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Minnesota State Board for Community Colleges

v. Knight,

465 U.S. 271 (1984) . . . . . . . . . . . . . . . . . . . . 8-11, 14, 17

Monson Trucking Inc.,

324 N.L.R.B. 933 (1997) . . . . . . . . . . . . . . . . . . . . . . .12

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Ochoa v. Pub. Consulting Grp., Inc.,

48 F.4th 1102 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . .12

2IÀFH 3URI ·O(PSV,QW·O8QLRQ/RF

331 N.L.R.B. 48 (2000) . . . . . . . . . . . . . . . . . . . . . . . .12

Pattern Makers’ League of N. Am. v. NLRB,

473 U.S. 95 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

vii

Cited Authorities

Page

Quezambra v. United Domestic Workers

of Am. AFSCME Loc. 3930,

445 F. Supp.3d 695 (C.D. Cal. 2020),

aff ’d, No. 20-55643, 2023 WL 4398498

(9th Cir. July 7, 2023),

cert. denied, Jarret v. SEIU Loc. 503,

144 S. Ct. 494 (2023). . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Savas v. California State L. Enf ’t Agency,

No. 20-56045, 2022 WL 1262014

(9th Cir. Apr. 28, 2022),

cert. denied, 143 S. Ct. 2430 (2023) . . . . . . . . . . . .5, 12

Schell v. Oklahoma Sup. Ct. Justices,

11 F.4th 1178 (10th Cir. 2021) . . . . . . . . . . . . . . . . . . . .1

Schiewe v. SEIU Loc. 503,

No. 3:20-CV-00519-JR, 2020 WL 5790389

(D. Or. Sept. 28, 2020),

aff ’d No. 20-35882, 2023 WL 4417279

(9th Cir. July 10, 2023),

cert. denied, Jarret v. SEIU Loc. 503,

144 S. Ct. 494 (2023). . . . . . . . . . . . . . . . . . . . . . . . . . . .6

6FRÀHOGY1/5%

394 U.S. 423 (1969). . . . . . . . . . . . . . . . . . . . . . . . . .4, 11

viii

Cited Authorities

Page

6HPHUM\DQY6(,8/RF

489 F. Supp.3d 1048 (C.D. Cal. 2020),

app. dismissed, No. 21-55104, 2021 WL 6881066

(9th Cir. Nov. 12, 2021). . . . . . . . . . . . . . . . . . . . . . . . . .6

Shea v.

Int’l Ass’n of Machinists & Aerospace Workers,

154 F.3d 508 (5th Cir. 1998). . . . . . . . . . . . . . . . . . . . .12

Speiser v. Randall,

357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . .8, 10

State v. Alaska State Emps. Ass’n,

529 P.3d 547 (Alaska 2023),

cert. denied, 144 S. Ct. 682 (2024) . . . . . . . . . . . . . . . .5

Tavernor v. Ill. Fed’n of Teachers,

226 F.3d 842 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . .12

W. Va. Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Wooley v. Maynard,

430 U.S. 705 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Wright v. SEIU Loc. 503,

48 F.4th 1112 (9th Cir. 2022),

cert. denied, 143 S. Ct. 749 (2023) . . . . . . . . . . . . .6, 12

ix

Cited Authorities

Page

Yates v. Wash. Fed’n of State Emps.,

466 F. Supp.3d 1197 (W.D. Wash. 2020),

aff ’d, No. 20-35879, 2023 WL 4417276

(9 Cir. July 10, 2023),

cert. denied, Jarret v. SEIU Loc. 503,

144 S. Ct. 494 (2023). . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Zielinski v. SEIU Loc. 503,

No. 20-36076, 2022 WL 4298160

(9th Cir. Sept. 19, 2022) . . . . . . . . . . . . . . . . . . . . . . . . .6

STATUTES

Declaration of Independence, 1 Stat. 1 (1776) . . . . . . . . .4

OTHER AUTHORITIES

2 Public Papers of the Presidents: Ronald

Reagan 1988-89 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . .4

Andrew Holman & David Osborne, The Battle

for Worker Freedom: How Gover nment

Unions Fund Politics Across the Country,

Commonwealth Foundation (December 2023) . . . . .15

Antoine Yoshinaka, Crossing the Aisle: Party

Sw it chin g b y U.S . Legi sl a t o rs in th e

Postwar Era (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Goldwater Helps Fired Conservative Prof Get

Answers, Goldwater Institute (Aug. 8, 2024) . . . . . . .2

x

Cited Authorities

Page

-HII &DQÀHOG Comment, What a Sham(e): The

Broken Beck Rights System in the Real World

Workplace, 47 Wayne L. Rev. 1049 (2001). . . . . . . . .12

Matt Beienburg, Reclaim Academic Freedom,

Goldwater Institute (Sept. 26, 2023) . . . . . . . . . . . . . .2

Paul Larkin, The Resurgence of Antisemitism

in American Higher Education, Heritage

Foundation (Aug. 6, 2024) . . . . . . . . . . . . . . . . . . . . . .15

R. Bradley Adams, Union Dues and Politics:

Workers Speak Out Against Unions Speaking

For Them, 10 U. Fla. J.L. & Pub. Pol’y 207

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

R. Owen Williams, Benjamin Curtis: Top of the

List, 82 Chi.-Kent L. Rev. 277 (2007) . . . . . . . . . . . . .4

Sam Sokol,  'D\V  5RFNHWV DQG 

Dead: The Israel-Gaza Fighting in Numbers,

Haaretz (May 23, 2021) . . . . . . . . . . . . . . . . . . . . . . . .16

The New Loyalty Oaths: How Arizona’s Public

Universities Compel Job Applicants to

Endorse Progressive Politics, Goldwater

Institute (Jan. 17, 2023) . . . . . . . . . . . . . . . . . . . . . . . .2

Use of Dues for Politics, UnionFacts.com . . . . . . . . . . .14

1

IDENTITY AND INTERESTS OF AMICUS CURIAE1

The Goldwater Institute was established in 1988

as a nonpartisan public policy and research foundation

devoted to advancing the principles of limited government,

individual freedom, and constitutional protections through

litigation, research, policy briefings, and advocacy.

Through its Scharf-Norton Center for Constitutional

/LWLJDWLRQWKH,QVWLWXWHOLWLJDWHVFDVHVDQGÀOHVDPLFXV

briefs when its or its clients’ objectives are directly

implicated.

The Institute devotes substantial resources to

defending the constitutional principles of free speech

and freedom of association. The Institute has appeared

frequently as counsel for parties or as amicus curiae in

cases implicating speech and associational rights. See,

e.g., Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373

(2021); Janus v. AFSCME, 585 U.S. 878 (2018); Anderson

Fed’n of Teachers v. Rokita1R WK&LUÀOHG0D\

1, 2023) (pending); Crowe v. Oregon State Bar, 989 F.3d 714

(9th Cir. 2021) (reversing dismissal of First Amendment

challenge to mandatory bar association membership);

Boudreaux v. Louisiana State Bar Ass’n., 86 F.4th 620

(5th Cir. 2023); Schell v. Oklahoma Sup. Ct. Justices, 11

F.4th 1178 (10th Cir. 2021).

1. The parties received timely notice of the Goldwater

,QVWLWXWH·VLQWHQWWRÀOHWKLVDPLFXVEULHISHU6XSUHPH&RXUW5XOH

3XUVXDQWWR5XOHFRXQVHOIRU$PLFXV&XULDHDIÀUPV

that no counsel for any party authored this brief in whole or in

part and that no person or entity, other than Amicus, its members,

or counsel, made a monetary contribution to the preparation or

submission of this brief.

2

The Institute dedicates particular attention to

holding public-sector unions accountable when they

abuse the public trust. See, e.g., Rokita, supra; Borgelt

v. City of Austin, No. 22-1149, 2024 WL 3210046 (Tex.

2024); Gilmore v. Gallego, No. CV-23-0130-PR, 2024 WL

3590669 (Ariz. 2024). Additionally, the Institute’s scholars

and litigators are intimately familiar with the excesses

of radicalism in higher education and the free speech

crisis on America’s college campuses. See, e.g., Anderson

v. Arizona Bd. of Regents, CV2024-005713 (Ariz. Super.

&WÀOHG0DU  SHQGLQJ Goldwater Helps Fired

Conservative Prof Get Answers, Goldwater Institute (Aug.

8, 2024)2; Matt Beienburg, Reclaim Academic Freedom,

Goldwater Institute (Sept. 26, 2023)3; The New Loyalty

Oaths: How Arizona’s Public Universities Compel Job

Applicants to Endorse Progressive Politics, Goldwater

Institute (Jan. 17, 2023).4

The Institute believes its litigation experience and

public policy expertise will aid this Court in considering

the appeal.

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conservative-prof-get-answers/.

3. https://www.goldwaterinstitute.org/reclaim-academicfreedom/.

4. https://www.goldwaterinstitute.org/policy-report/thenew-loyalty-oaths/.

3

SUMMARY OF REASONS

FOR GRANTING THE PETITION

The egregious facts of this case dramatize like

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be, and that must be, addressed by this Court. If the right

against compelled association means anything, then surely

the government cannot force someone, as a condition of

public employment or otherwise, to be represented by an

organization that actively advocates against that person’s

interests. Having no representation is preferable to

adverse representation.

No person should be coerced into association

with—let alone representation by—ideologically driven

organizations with which they fundamentally disagree.

That is cruel and oppressive. Janus v. AFSCME, 585

U.S. 878, 893 (2018). And choosing to terminate such

representation is itself an expressive activity protected

by the First Amendment. Yet lower courts continue to

enforce rules that prohibit public sector employees from

severing ties with their unions, even when those unions

engage in egregious and outrageous behavior such as in

this case. The public thirsts for clarity regarding their

fundamental First Amendment rights—rights that at this

point only this Court can secure.

The Court should grant certiorari if it is to preserve

Americans’ rights to freely associate—and, importantly

here, disassociate.

4

REASONS FOR GRANTING THE PETITION

The right to freely associate, as protected by the First

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See Janus, 585 U.S. at 930. From the “I do’s” of marriage

to the underpinnings of our very nation, see Declaration

of Independence, 1 Stat. 1 (1776), mutual consent is the

touchstone of every form of free human association, small

or large. That is because the right to refuse to associate

is the most basic safeguard of individual conscience—as

well as of a properly functioning democratic process.

The right to disassociate—the right to cut ties,

publicly or privately, with individuals or organizations with

whom a person previously associated—is thus a crucial

form of self-expression and individual choice. Whether

it be Justice Benjamin Curtis resigning from this Court

to protest the Dred Scott ruling, see R. Owen Williams,

Benjamin Curtis: Top of the List, 82 Chi.-Kent L. Rev.

277, 286–87 (2007), or Senator Wayne Morse quitting

the Republican Party to become a Democrat, Antoine

Yoshinaka, Crossing the Aisle: Party Switching by U.S.

Legislators in the Postwar Era 15 (2016), or Ronald

Reagan leaving the Democratic Party because “[t]hey left

me,” 2 Public Papers of the Presidents: Ronald Reagan

1988-89 1084 (1991), the right to refuse to be counted as

part of a group one disagrees with is absolutely critical

to freedom of expression and conscience.

This Court has, indeed, recognized the centrality of

the right to resign from a labor union. See, e.g., 6FRÀHOG

v. NLRB, 394 U.S. 423, 430 (1969); cf. Pattern Makers’

League of N. Am. v. NLRB, 473 U.S. 95, 105 (1985).

And yet public-sector unions violate this right routinely,

5

through the imposition of exclusive representation rules

and restrictions on the right to quit—and they keep getting

away with it, thanks to precedent that allows states to

force employees to accept exclusive representation by a

XQLRQWKH\PD\ÀQGXQDFFHSWDEOHRUWREHEDUUHGIURP

the workplace. See, e.g., State v. Alaska State Emps. Ass’n,

529 P.3d 547 (Alaska 2023), cert. denied, 144 S. Ct. 682

(2024); Savas v. California State L. Enf ’t Agency, No.

20-56045, 2022 WL 1262014 (9th Cir. Apr. 28, 2022), cert.

denied, 143 S. Ct. 2430 (2023); Jarrett v. SEIU Loc. 503,

144 S. Ct. 494 (2023) (denying cert. in several such cases);

Mentele v. Inslee, 916 F.3d 783 (9th Cir. 2019), cert. denied,

140 S. Ct. 114 (2019).

Although dicta in Janus paradoxically recognizes that

H[FOXVLYH UHSUHVHQWDWLRQ LV ´D VLJQLÀFDQW LPSLQJHPHQW

on associational freedoms,” 585 U.S. at 916, the Court

simultaneously suggested that exclusive representation

might be permissible, even though it “would not be

tolerated in other contexts.” Id. The result is legal

precedent such as that established below, which says

that Janus “does not undermine the constitutionality

of exclusive representation by public-sector unions that

do not assess mandatory agency fees.” App. 9a. The

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associational freedoms” should “not be tolerated” at all,

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The freedom to disassociate merits at least as

much protection as the right to freely associate. And

because of the political nature of modern public-sector

unions, the rights of dissenting employees to resign and

terminate all representation are essential to protect not

only associational rights generally, but the core First

Amendment right to express one’s political views.

6

I.

The Court should grant the petition so it can clarify

its associational rights caselaw.

A.

The Court should clarify its dicta in Janus

regarding exclusive representation.

Janus held that public employees’ associational rights

were violated by a forced subsidization scheme where

workers paid fees to a union as a condition of employment,

“even if they [chose] not to join and strongly object[ed] to

the positions the union t[ook] in collective bargaining and

related activities.” 585 U.S. at 884–85. 5 The Janus court

recognized that “[f ]undamental free speech rights [we]re

at stake” because unions engaged in “private speech on

matters of substantial public concern.” Id. at 886.

5. Lower courts’ resistance to Janus KDV EHHQ ÀHUFH See,

e.g., Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020), cert. denied,

141 S. Ct. 2795 (2021); Zielinski v. SEIU Loc. 503, No. 20-36076,

2022 WL 4298160 (9th Cir. Sept. 19, 2022); Jarrett v. Marion

Cnty., No. 6:20-cv-01049-MK, 2021 WL 65493 (D. Or. Jan. 6, 2021),

aff ’d 2023 WL 4399242 (9th Cir July 7, 2023), cert. denied, 144

S. Ct. 494 (2023); Schiewe v. SEIU Loc. 503, No. 3:20-CV-00519JR, 2020 WL 5790389 (D. Or. Sept. 28, 2020), aff ’d No. 20-35882,

2023 WL 4417279 (9th Cir. July 10, 2023), cert. denied, Jarret v.

SEIU Loc. 503, 144 S. Ct. 494 (2023); Wright v. SEIU Loc. 503,

48 F.4th 1112 (9th Cir. 2022), cert. denied, 143 S. Ct. 749 (2023);

6HPHUM\DQY6(,8/RF, 489 F. Supp.3d 1048 (C.D. Cal. 2020),

app. dismissed, No. 21-55104, 2021 WL 6881066 (9th Cir. Nov. 12,

2021); Yates v. Wash. Fed’n of State Emps., 466 F. Supp.3d 1197

(W.D. Wash. 2020), aff ’d, No. 20-35879, 2023 WL 4417276 (9 Cir.

July 10, 2023), cert. denied, Jarret v. SEIU Loc. 503, 144 S. Ct. 494

(2023); Quezambra v. United Domestic Workers of Am. AFSCME

Loc. 3930, 445 F. Supp.3d 695 (C.D. Cal. 2020), aff ’d, No. 20-55643,

2023 WL 4398498 (9th Cir. July 7, 2023), cert. denied, Jarret v.

SEIU Loc. 503, 144 S. Ct. 494 (2023).

7

Although it wasn’t at issue in the case, the Janus

Court also noted that exclusive representation creates “a

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would not be tolerated in other contexts.” Id. at 916. The

reason why is that “this designation means that individual

employees may not be represented by any agent other

than the designated union; nor may individual employees

negotiate directly with their employer.” Id. at 887. Rather,

“[p]rotection of the employees’ interests is placed in the

hands of the union, and therefore the union is required

by law to provide fair representation for all employees in

the unit, members and nonmembers alike.” Id. In other

words, states may not forbid people from speaking, nor

may they force people to join and subsidize unions—and

yet in this and other cases, states are forbidding people

from speaking (i.e., from negotiating with employers) if

they refuse to join and subsidize a union.

That makes no logical sense, and the practical

consequences are constitutionally offensive, even

outrageous. It certainly is in this case, in which a group

of predominantly Jewish, pro-Israel, Zionist professors

are being forced to choose between representation by a

union that is openly hostile to the nation of Israel, and that

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93a–95a—or, in effect, to surrender their employment,

because they “may not themselves directly bargain with

or select their own representative to bargain with CUNY

over their employment terms.” App. 9a.

It is hard to imagine any context in which such “heads

I win; tails you lose” logic would be permitted. The

government cannot, for example, tell a property owner that

she must either surrender her property or be prohibited

8

from building on it, see, e.g., Nollan v. California Coastal

Comm’n, 483 U.S. 825, 837 (1987), or tell a person that he

must waive his free speech rights in order to qualify for a

tax exemption, Speiser v. Randall, 357 U.S. 513, 518–19

(1958), or bar a person from a profession and then argue

that this isn’t a punishment because she could simply

choose another profession, cf. Ex parte Garland, 71 U.S.

(4 Wall.) 333, 370 (1866) (argument of Reverdy Johnson:

“[the petitioner] is gravely told, ‘You are not obliged to take

[the oath].’ Certainly, he is not obliged to take it. No man

is obliged to follow his occupation; but unless he takes it

he must starve, except he have other means of living.”).

How much more outrageous is such logic in the realm of

the First Amendment, which has for so long been accorded

special legal solicitude.

B. The Court should clarify the status of Knight,

which rested on the now-overruled Abood.

The petition commendably discusses the Second

Circuit’s expansive reading of Minnesota State Board

for Community Colleges v. Knight, 465 U.S. 271 (1984),

and suggests that the facts here are distinguishable.

%XW UHJDUGOHVV RI ZKHWKHU WKHUH LV VXIÀFLHQW EDVLV WR

distinguish the two cases, Knight itself rests on shaky

ground. Three of the four opinions in that case cite Abood

v. Detroit Board of Education, 431 U.S. 209 (1977), to

rationalize laws that impose exclusive representation by

force. Compare 465 U.S. at 291, with id. at 299 (Brennan,

J., dissenting), and id. at 316 (Stevens, J., dissenting). Yet

with the overruling of Abood in Janus—indeed, Janus

recognized Abood as a First Amendment “anomaly” and

“oddity,” 585 U.S. at 925–26—this Court has already

eroded one of the foundation stones on which Knight rests.

9

In truth, Knight is as much an oddity as Abood. In

no other context would this Court countenance forcing

people to join a group with which they disagree—or

among whom they are despised and treated with scorn

and contempt—on pain of being effectively deprived of

their employment by state law.

In practice, Knight permits states to force people

to join unions against their will, because it empowers

states to forbid people from negotiating with the state

unless they join that private association. The Knight

Court characterized its holding in euphemistic terms—as

rejecting the proposition that people have “a right to force

RIÀFHUV RI WKH VWDWH DFWLQJ LQ DQ RIÀFLDO SROLF\PDNLQJ

capacity to listen to them in a particular formal setting,”

465 U.S. at 282, but in reality, the decision authorized

the state to close off all but a single avenue whereby a

prospective employee could approach the state for a job—

that one avenue being: joining the union. This simply is

compelled association under a different name, as Justices

Stevens, Brennan, and Powell explained:

It is inherent in the republican form of

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. . . to listen to some of their constituents . . . .

But the First Amendment does guarantee an

open marketplace for ideas . . . . The Minnesota

VWDWXWHSODFHVDVLJQLÀFDQWUHVWUDLQWRQWKDWIUHH

competition, by regulating the communication

that may take place between the government

and those governed. . . . [It] gives only one

speaker a realistic opportunity to present its

YLHZVWRVWDWHRIÀFLDOV$OORWKHUFRPPXQLFDWLRQ

is effectively prohibited, not by reference to the

10

time, place or manner of communication, or

HYHQE\UHIHUHQFHWRWKHRIÀFLDOV·ZLOOLQJQHVV

to listen, but rather by reference to the identity

of the speaker.

Id. at 300–01 (Stevens, J. dissenting). This was obviously

correct. Yet the majority in Knight rejected it by invoking

the rational basis test and by a single case citation: “it is

rational for the state to [see to it that it] ha[s] before it only

one collective view of its employees when ‘negotiating.’ See

Abood . . . .” Id. at 291.

What’s more, the Knight Court had no call to address

the First Amendment value of disassociation. The Court

said that the compulsory representation law there did

not violate the First Amendment because it merely

increased the “pressure” on professors to join, but left

them free to speak and associate, id. at 289–90, but it

was not asked to address the way in which exclusive

representation penalizes a person for disassociation from

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for political, religious, or racial reasons. In Speiser, the

Court acknowledged that “[t]o deny [a tax] exemption to

claimants who engage in certain forms of speech is in

effect to penalize them for such speech,” because it would

have the same “deterrent effect . . . as if the State were

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Knight nor subsequent cases addressed how this principle

applies in situations where an exclusive representation law

forces employees to accept representation by a union—

and penalizes them for disassociation with that union by

effectively barring them from employment.6

6. Although aware of the tension in these principles, the

Knight majority did not address them—again citing Abood: “Abood

11

Now that Abood has been rightly overruled—and with

it the rational basis test that it (anomalously) employed

in the free speech context, cf. Janus, 585 U.S. at 894–95

(attributing rational basis review to Abood and rejecting

it)—the Court should clarify the status of Knight in the

wake of Janus.

II. The Court should grant the petition so it can

adequately protect the First Amendment right to

disassociate.

The r ight of association belongs not only to

organizations, but to all individuals who may wish to

associate, or abstain from associating, or disassociate.

Like “the right to refrain from speaking,” Wooley v.

Maynard, 430 U.S. 705, 714 (1977), “[t]he right to eschew

association for expressive purposes,” is protected by

the First Amendment. Janus, 585 U.S. at 892. This

Court’s precedents make clear that without the right to

disassociate, the right to associate means little. Roberts

v. U.S. Jaycees, 468 U.S. 609, 623 (1984) (“Freedom of

association . . . plainly presupposes a freedom not to

associate.”). In fact, the Court long ago recognized the

centrality of the right to resign from a union. 6FRÀHOG, 394

U.S. at 430 (union members’ freedom to leave the union

and escape union rule meant rule was not coercive).

Association with any organization should not, and

constitutionally cannot, be a one-way ticket. In fact, the

held that employees may not be compelled to support a union’s

ideological activities unrelated to collective bargaining. . . . Of

course, this case involves no claim that anyone is being compelled

to support MCCFA’s activities.” 465 U.S. at 291 n.13.

12

right to resign is more important than the right not to

MRLQLQWKHÀUVWSODFH%HLQJIRUFHGWRDVVRFLDWHZLWKDQ

organization is offensive enough, but at least it may be a

one-time injury. Being denied the right to disassociate if

that organization commits an act one regards as wrong

is worse—because it stretches the associational and

H[SUHVVLYHLQMXU\LQWRWKHLQGHÀQLWHIXWXUH7

T h is Cou r t ’s m i xed messag i ng on exclusive

representation is largely responsible for this incongruity:

Because of Janus, Petitioners could resign from

7. Disturbingly, and with little judicial recourse for victims,

many unions often use deceptive or coercive tactics to compel or

retain membership and dues. See, e.g., Ochoa v. Pub. Consulting

Grp., Inc., 48 F.4th 1102 (9th Cir. 2022); Wright v. SEIU Loc. 503,

48 F.4th 1112 (9th Cir. 2022); Loc. 58, Int’l Bhd. of Elec. Workers

(IBEW v. NLRB, 888 F.3d 1313, 1317 (D.C. Cir. 2018); Cummings

v. Connell, 316 F.3d 886, 890–91 (9th Cir. 2003); Tavernor v. Ill.

Fed’n of Teachers, 226 F.3d 842, 848 (7th Cir. 2000); Shea v. Int’l

Ass’n of Machinists & Aerospace Workers, 154 F.3d 508, 515

(5th Cir. 1998); Savas, 2022 WL 1262014 at *1–2; Debont v. City

of Poway, No. 98CV0502-K(LAB), 1998 WL 415844, at *2 (S.D.

Cal. Apr. 14, 1998); McCahon v. Pennsylvania Tpk. Comm’n,

491 F. Supp.2d 522, 527 (M.D. Pa. 2007); Chauffeurs, Teamsters,

Warehousemen & Helpers Union, Loc. No. 377, No. 8-CB-9415-1,

2004 WL 298352 (N.L.R.B. Feb. 11, 2004); 2IÀFH 3URI ·O(PSV

,QW·O8QLRQ/RF, 331 N.L.R.B. 48 (2000); Monson Trucking

Inc., 324 N.L.R.B. 933, 935 (1997); Local 74, SEIU, 323 N.L.R.B.

289, 290 (1997); Local 647, UAW, 197 N.L.R.B. 608, 609 (1972);

Marlin Rockwell Corp. (Auto. Workers, Loc. 197), 114 N.L.R.B.

    -HII &DQÀHOG Comment, What a Sham(e): The

Broken Beck Rights System in the Real World Workplace, 47

Wayne L. Rev. 1049, 1050 (2001); R. Bradley Adams, Union Dues

and Politics: Workers Speak Out Against Unions Speaking For

Them, 10 U. Fla. J.L. & Pub. Pol’y 207, 222 (1998).

13

membership in the union and stop paying union dues8;

and yet, Petitioners are still subject to representation

by the union in negotiations regarding the terms of their

employment.

Representation, however, is a stronger form of

association than mere membership —because

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for a representative to literally stand in the place of the

represented party. It is, again, anomalous to suggest that

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perhaps by the highest register of constitutional strict

scrutiny, while at the same time allowing the state to

penalize a person for refusing to accept the state as

an RIÀFLDO VSRNHVPDQ in the employment negotiation

process, responsible for the most important binding

legal obligations and economic consequence to affect that

employee. By way of analogy, it is as if this Court were to

hold that a person may proceed at trial without counsel,

Faretta v. California, 422 U.S. 806, 807 (1975)—but also

that a defendant who waives counsel must nevertheless

adhere to a plea bargain negotiated by the lawyer she

rejected—or that a person may refuse medical treatment,

Cruzan by Cruzan v. Dir., Missouri Dep’t of Health,

497 U.S. 261, 270 (1990), but that a person refusing such

treatment could be prohibited from obtaining medical

services from anyone else.

None of this is logical. If compelled membership

violates the First Amendment, so does compelled

8. Three of the Petitioners had to sue to halt the deduction of

union dues from their paychecks. Those claims settled relatively

early in the litigation below. See App. at 5a n.2.

14

representation. Yet lower courts are bound to follow

Knight until this Court says otherwise. See Agostini v.

Felton, 521 U.S. 203, 207 (1997). This Court should take

the opportunity to protect the critical right to freedom of

speech and of association by granting certiorari.

III. Public-sector unions now focus more on partisan

political advocacy than on dutifully representing

public employees in labor negotiations.

The right to disassociate is even more important

when political speech is involved than in other situations,

because this Court has said that “core political speech”

is at the “zenith” of First Amendment values. Meyer v.

Grant, 486 U.S. 414, 420, 425 (1988). And as this Court

is well aware, public-sector unions are partisan political

entities, not labor negotiators in the traditional sense.

Given their overwhelming (and increasing) political

identity, association with a union has taken on a political

valence that was not present in the days of Samuel

Gompers or George Meany.

Consider: to date in the 2023–2024 election cycle,

the National Education Association (the nation’s largest

teacher union), has donated nearly $22 million to political

parties, candidates, and causes—99.7% to liberals and

progressives.9 Those numbers roughly track prior election

cycles. See, e.g., Use of Dues for Politics, UnionFacts.com10

´)URPWRXQLRQRIÀFLDOVVHQWPRUHWKDQ

billion in member dues to hundreds of liberal advocacy

groups . . . account[ing] for 99 percent of the union

9. https://www.opensecrets.org/industries/indus?ind=P04.

10. https://www.unionfacts.com/article/political-money/.

15

money going toward political advocacy during that time

period.”); Andrew Holman & David Osborne, The Battle

for Worker Freedom: How Government Unions Fund

Politics Across the Country, Commonwealth Foundation

14 (December 2023)11 (noting that in 2021–2022, the four

largest public-sector unions spent over $708 million—

outspending the defense, transportation, and construction

industries—95.7% of which landed in liberal coffers).

But union political activities extend far beyond merely

raising and spending money. Public sector unions actively

advocate regarding matters of public concern—often at

the expense of those whom they are supposed to represent

and serve.

The Court need look no further than this case. Even

before the most recent nationwide spike in violent and

public anti-Semitism on American college campuses,12

PSC passed a radical resolution condemning Israel as “a

settler colonial state,” and falsely accusing it of practicing

“apartheid” and “legalized racial discrimination.” App.

93a. The resolution called for ending all American aid

to Israel and for “discussions” related to the “Boycott,

Divestment, and Sanctions (BDS)” movement. Id. at

94a–95a. Unsurprisingly, Petitioners consider this

resolution and PSC to be anti-Semitic, Pet. at 1, and for

good reason. The resolution, after all, denounces “the

11. https://www.commonwealthfoundation.org/wp-content/

uploads/2023/12/Union-Political-Spending-Report-Dec2023.pdf.

12. See, e.g., Paul Larkin, The Resurgence of Antisemitism

in American Higher Education, Heritage Foundation (Aug. 6,

2024), https://www.heritage.org/education/report/the-resurgenceantisemitism-american-higher-education.

16

massacre of Palestinians by the Israeli state,” App. 94a,

but made no mention of the fact that Hamas began the

DWWDFNVE\ÀULQJURFNHWVDW,VUDHO DLPHGDWQHDUO\

1,000 targets and involving more than 4,000 rockets). Sam

Sokol, 'D\V5RFNHWVDQG'HDG7KH,VUDHO

Gaza Fighting in Numbers, Haaretz (May 23, 2021).13

Nor did the PSC pass any resolutions condemning, e.g.,

the violence simultaneously occurring in Syria, Nigeria,

or India. This asymmetrical condemnation of Israel—a

victim defending itself—combined with silence regarding

atrocities committed by Muslim forces, indicates the true

motivation behind the PSC’s anti-Israel resolution.

Or at least a reasonable Jewish professor could believe.

Regardless of where one falls on these issues, Petitioners

and the representatives they are legally compelled

to accept as their spokesmen in labor negotiations

are obviously at odds. Certainly if the sponsors of a

St. Patrick’s Day parade can’t be forced to include

participants who wish to speak on social issues that the

organizers would rather remain silent on, Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,

572–81 (1995), and people with religious scruples cannot

EHFRQVWLWXWLRQDOO\IRUFHGWRVDOXWHWKHÁDJW. Va. Bd. of

Ed. v. Barnette, 319 U.S. 624 (1943), and attorneys cannot

be forced to participate in a bar association that engages

in non-germane political or ideological activities, Keller

v. State Bar of California, 496 U.S. 1, 15–16 (1990), then

certainly Jewish employees cannot be forced to submit

to being legally and economically represented by a labor

union that they reasonably view as anti-Semitic.

13 . https: // w w w.ha a ret z .com / isra el-new s /elect ions /

2021-05-23/ty-article/.highlight/11-days-4-340-rockets-and-261GHDGWKHLVUDHOJD]DÀJKWLQJLQQXPEHUVIHIGD

a5ff-ffde438f0000.

17

Obviously, the problem would be the same if the

state forced Muslim professors to be represented by

an Islamophobic union, if LGBTQ+ professors were

coercively represented by a homophobic union, if female

professors were forcibly represented by a misogynistic

union, or if black professors were compelled to accept

representation by a white supremacist union.

“[P]rominent members of the founding generation

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or support beliefs with which they disagreed.” Janus,

585 U.S. at 905. Indeed, they called such laws not only

“tyrannical,” but “sinful,” id. (emphasis added), precisely

because they recognized the close connection between

speech, association, and conscience, particularly touching

on religious matters. When the beliefs in question are so

personal, religious, and sensitive in nature as those of

fundamental religious or personal identity, as informed

by the historical marginalization of minority groups, the

constitutional dimensions are multiplied. Cf. Emp. Div.,

Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 881 (1990)

(recognizing increased constitutional concern when speech

and religion rights intersect).

For all those reasons, this case presents a crucial

opportunity to address the continued viability of Knight,

and its acceptance of the principle of compulsory

representation. The Court should consider the scope of

Petitioners’ First Amendment to completely disassociate

from persons and organizations they abhor. The very act

of disassociating is an expressive activity and should be

protected to the same extent as other core political speech.

18

CONCLUSION

To address blatant injustice and to bolster the First

Amendment’s broad associational rights protections, the

Court should grant the petition.

Respectfully submitted,

TIMOTHY SANDEFUR*

PARKER JACKSON

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION AT

THE GOLDWATER INSTITUTE

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

* Counsel of Record

Counsel for Amicus Curiae Goldwater Institute