The following is an edited transcript of an interview between Daily Wire Editor-in-Chief John Bickley and CUNY Law Professor Jeffrey Lax and attorney Nathan McGrath, president and general counsel at the Fairness Center on a Sunday Extra Edition of Morning Wire.
In a potential landmark Supreme Court case, a group of Jewish professors is suing over being forced to be represented by a teachers’ union they say is actively engaged in discrimination against them and other Jewish people. The First Amendment case could change the law of the land when it comes to unions and forced representation. In this episode, we sit down with one of the City University of New York professors bringing the lawsuit and the attorney arguing that his civil rights are being violated.
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JOHN: Joining us now is Jeffrey Lax, law professor at Brooklyn’s Kingsborough Community College, and Nathan McGrath, president & general counsel at the Fairness Center who is representing Lax and his colleagues. Gentlemen thank you for joining us. First, it would be helpful for our audience to hear a bit about your backgrounds. Nathan, you have a special expertise related to this case, correct?
NATHAN: Right. I am the lead attorney on this case – and glad to be here for that. My background: I’ve been practicing law since 2010. I was in private practice originally and I kind of stumbled into this area of law. In 2012, I ended up taking a job with National Right to Work, spent five years there, kind of cutting my teeth in this area of law, ended up being recruited by the Fairness Center and came up here and have devoted my practice to representing people who public sector union officials have violated their rights, whether it’s constitutional rights or they’ve retaliated against them for exercising constitutional rights, and even union corruption. I’ve spent a lot of years kind of steeped in this area of law. So, when Jeff and his colleagues came to us with a constitutional question involving union officials, that was right up my alley.
JOHN: So, clearly you’ve seen a lot of these kinds of cases coming into this particular lawsuit. While Jeff, you also have a legal background – but also years of teaching experience at the college you’re now suing.
JEFF: Yes, I’m one of six professors who are plaintiffs in the lawsuit. I have five years of litigation experience, and then I went into academia full-time. I’ve been at Kingsborough Community College as a law professor since 2004, and I’ve been the chair of the Department of Business there since 2011. And Nathan says that there are very few people who do what he does. I’m gonna one up him. There’s nobody who’s done what I’ve done, which is not only sue my boss while I’m working for them, but also sue the union that represents me against that boss at the same time.
JOHN: That sounds complicated.
JEFF: There’s nobody doing that – except maybe the six plaintiffs who are joined with me. That’s a rarity.
LISTEN: Catch the full interview with Jeffrey Lax and Nathan McGrath on Morning Wire.
JOHN: So let’s talk about this case. What’s the timeline of events that led you up to the point that you’re taking legal action – all the way up to the Supreme Court?
JEFF: Well, CUNY has been a hotbed of anti-Semitism for years and I’ve been blowing the alarm on that personally. Then I founded a group called S.A.F.E. Campus — Students, Alumni, and Faculty for Equity on Campus — a couple years ago, well before October 7. And we’ve been talking about the systemic anti-Semitism at the university for all these years. I have an op-ed in the New York Post regarding this lawsuit and also the history of anti-Semitism at CUNY. So, we’ve been talking about that at our university for a long time. What a lot of people don’t know is the union, the PSC CUNY — the Professional Staff Congress of City University of New York — has been a driving force and I would say the main driving force of the specific incidents of anti-Semitism at the university. We’ve seen what’s going on behind the scenes for years. I saw what was happening on October 8, people defending Hamas and things of that horrid nature. I knew that day was coming and I was warning people for years that that day was coming. I just didn’t know that October 7, the most horrific event to happen to Jews on that scale since the Holocaust – obviously I couldn’t predict that — but we knew eventually the mask would be ripped away from the faces of the people who went and defended the monsters who did what they did on October 7. I knew that would eventually happen one day. So, usually when I do interviews – and I’ve been on Fox a lot of times and a lot of different radio shows – they always ask me, was I surprised by what happened on October 7? And I say, “Yes, I was surprised by the events of October 7, but I was not surprised by the reaction of academia and faculty on October 8, because I’ve been seeing it behind the scenes for a decade.” I’ll just finish with these two stunning things: One thing that I saw was, that over about a 10-year period, CUNY and, and New York – First of all, CUNY is the largest urban university in the country. It’s got 25 campuses, and it’s got about 240,000 students, and its senior administration, which has 45 people, has zero Jews. Now, it is hard to hire 45 people and not just fall over a Jew in a city that’s 20% Jewish. So that was a methodical thing that they did over that period. And the head of discrimination at CUNY, the person in charge of discrimination across all 25 campuses, is Saly Abd Alla. She is a former CARE Minnesota director. Now, CARE Minnesota, for those who may not know, is not just a CARE chapter. It is one of the most extreme CARE chapters. And she was the leader of the BDS movement – Boycott, Divestment, and Sanctions movement – an anti-Israel, anti-Semitic movement at that chapter. She’s the head of discrimination, meaning she’s in charge of anti-Semitism across the university. So again, something like that does not happen by accident. It is purposeful. And the union is really behind so much of this because of the people they push to get hired at the university, because they get funding. They helped strategize, for example the Gaza encampments that you guys all saw on TV. Our group SAFE Campus has emails that document that they were strategizing with these “students” – and I say it that way because a lot of them really were not students, the faces are students, but really there’s always faculty members and that means a union with money driving all this stuff. So, we have a lot of emails that show how horrifying the organization is of these unions that support these illegal activities. I’ll just add one last thing, and then I’ll let Nathan talk. The unions are Marxist, and I don’t say that for dramatic effect. I’m not exaggerating. They actually call each other “comrade” at union meetings, and they’re not joking. They push for Marx, they celebrate Marx’s birthday at my campus. So they are full-on, dyed-in-the-wool Marxists. In fact, they don’t support Democrats. That’s the thing that is the most stunning of all. Democrats think these crazy, lunatic, radical Islamic Marxists are on their side. They’re not. In New York, my union didn’t support Bill de Blasio, they supported Cynthia Nixon because she was the more Marxist candidate. They didn’t even support Andrew Cuomo. They supported [Zephyr] Teachout, who again, was the more Marxist candidate. So if you think that Bill de Blasio is a moderate, you’re insane – and that’s who my union is.
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JOHN: So now you are forced to be represented by this union, which begs the question, for Nathan, how is that even possible legally?
NATHAN: How is it possible? It goes all the way back to the 1940s to a Supreme Court decision. Back then, the Supreme Court said we’re going to allow this scheme where state law can basically force people to be represented by a union for collective bargaining – terms and conditions of employment and for grievances and disciplinary matters, those types of things. They will allow certain states, if they want, to force different bargaining units — basically groups of employees at different places of employment — to be represented only by the union, meaning they can’t speak for themselves, they can’t make any deal with the contract for themselves. The union gets to do it all, and these people are forced to accept whatever the union negotiates for them. And so, in this situation, what we’re seeing across the country, unions are trying to negotiate BDS stuff into contracts now with employers, which obviously would be horrible for our clients. And generally speaking, what does that have to do with terms and conditions of employment? So, in 1944 the Supreme Court basically said, ”Yeah, we think this is a little bit of an impingement on your constitutional rights, but we’re going to allow it because we’re going to say the union still has a duty of fair representation, basically doesn’t matter who you are whether you’re a union member or not because we’re basically taking your voice away and giving all this power to the union, they’ll have to represent you fairly.” That was kind of reaffirmed by the Court in the 80s. But what we’re doing here today, what Jeff and his colleagues’ case is putting before the Supreme Court, I think is the very clearest cut example of what the Court has blessed even though they’ve admitted, as recently as the Janus decision in 2018, that this is an impingement on constitutional rights. It’s putting before the Court this scenario and Jeff’s situation crystallizes it — like how does this work? This doesn’t work anymore, where you give a union that says it speaks for 30,000 professors in New York city, they speak for them on all these topics and yet they’re out pushing the BDS movement, they’re coming out with resolutions against Israel and pro-Palestine. Well, whatever you believe personally on that issue, our clients don’t believe that, yet the union says they speak for them. I had to laugh the other day. I was kind of looking through one of the transcripts in this case of a lower court hearing we just had, as I was presenting oral arguments, at one point the federal judge said, “What does the union have to do with popping off about policy in the Middle East and international relations?” And I just wanted to say, “Hey, that’s, that’s a good question, judge. Maybe you should ask the other side, like, what is the union doing popping off about these, these issues?” It doesn’t have anything to do with New York city professors and their terms and conditions of employment. So we’re presenting this to the Supreme Court. We’re basically. giving them the ability to say, ”Yeah, exclusive representation doesn’t work anymore.” And if they were to take the case and roll in Jeff’s favor, it would fundamentally change the landscape of labor law across the country because it simply comes down to this: People would finally be free to choose who speaks for them and who doesn’t speak for them.
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JOHN: It’s frankly hard for the layman to believe this is allowable under current law. What about the financial side of this? Are professors forced to pay union dues? Or is it just that you have no voice other than this union?
JEFF: Because of the great work of organizations like the National Right to Work Foundation and the Fairness Center, Janus transpired. And Nathan’s organization was very much involved in Janus happening and allowing me to actually get out of the union. So our union, at the time of Janus, had over 30,000 members. Our union has to publicize their data every year, I believe, and the last time I looked, they only had just over 23,000 members. So that tells you how many people are disillusioned with our union. That’s 7,000 people. Thanks to Nathan’s work and his organization’s work, they were able to opt out of the union, and to answer your question more directly, not pay dues. However, the second part of your question, you said it exactly right, because of the state law, what’s called the Taylor Law in New York State, we are required to be part of the bargaining unit, meaning that whatever terms our union negotiates for us, we are bound by those terms. And in my case,and also, I believe I can speak for my five co-plaintiffs cases, it’s not just that we disagree fundamentally, ideologically, and find appalling the views of our union. It’s really not just that, it’s much more practical. Our union right now has no contract with the university. They’re negotiating a new contract now. And anybody who even watches a little bit of the news has seen in the news that universities like Columbia and our university, we’ve really been at the forefront of the anti-Semitism problem – with those two speakers, if you recall, whose videos at CUNY Law School went viral with their hate, not only of Jews but of America itself talking about how capitalism is a problem and Western culture and really urging the downfall of America. So, the fact that they bargain for us when there’s so much anti-Semitism at our university — a report just came out on September 24 which is when I wrote my op-ed in the New York Post, which said that the anti-Semitism was so pervasive that the City University of New York must completely overhaul its anti-Semitism policies. That’s underscored by what I said in the beginning of this interview, which is that a CARE director and BDS activist — an anti-Semitic activist — is the head of anti-Semitism, of overseeing anti-Semitism at our university. I don’t know what could possibly lead to a situation where you hire someone who’s an avowed anti-Zionist representing thousands of Zionist Jews at CUNY. So our union, while they’re currently bargaining for our new contract, are actually chanting at the same time – our union delegates, the people who represent me – are chanting “Zionists out of CUNY!” and “Zionism out of CUNY!” They chant that, our delegates, and they organize rallies where they chant that. They hate me. They hate people like me. They hate Zionist Jews. They hate the overwhelming majority of Jews who are Zionist Jews. So they are literally negotiating for anti-Semitism on my campus.
NATHAN: I remember when, Jeff, when we first took the case for Jeff and as a lawyer, it makes me shudder a little bit representing another lawyer because it’s like, oh man, here we go. But we had this really long conversation in the beginning and the conclusion of it, Jeff was like, listen, this isn’t about being anti-union or anything like that. It’s about giving people a choice, right? So that if you have a union that is, you know, as he was talking about fundamentally against them and all these types of things. You have a choice to leave that union and have someone else represent you or represent yourself or just choose not to be represented, you know at all. That’s what this case is about. It’s about when people want a different option, that the law, the government can’t force you under the thumb of someone who is radically opposed to you, doesn’t have your best interests in mind. We have a First Amendment, guys, freedom of speech, freedom of association. We have religious liberties. The exclusive representation system is contrary to all of that. The Supreme Court has recognized that, basically, over a number of cases where it’s written about it being an impingement upon First Amendment rights. This case gives the Court the opportunity to finally clean this up and say, you know what, this doesn’t work. This is no good. And I think Jeff’s case perfectly illustrates why it needs to be taken down.
JOHN: Yes, certainly a stark representation of all those arguments against the current state of laws regarding unions. Final question, what’s next for this case – what are the next steps?
NATHAN: Yeah. So Jeff and his colleagues have filed before the Supreme Court asking them to take their case. Oddly, the other side waived their right to respond, and the Court actually came back on September 12, I think it was, and said, ”No, we want to hear from you, we need a response.” So that’s due pretty soon here. We’re going to hear back from their side, the union, and then the Supreme Court will, probably later this year, figure out whether they want to take the case or not.
JOHN: Let’s hope they do. Gentlemen, thank you so much for coming on.
JEFF: Thank you for covering this.
NATHAN: Thank you, John. I really appreciate it.
JOHN: That was Jeffrey Lax and Nathan McGrath – and this has been a Sunday edition of Morning Wire.
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