Court Rejects Professors’ Lame Attempt to Blame CUNY For Allegations of Antisemitism Against Them
NY Supreme Court: The professors’ allegations were “patently insufficient” to support a cross-claim against CUNY.
Two City University of New York (CUNY) professors sued by their fellow faculty members for antisemitism suffered a setback last week when the court rejected their cross-claims against CUNY, their co-defendant in the lawsuit.
While the litigation is far from over, the judge’s clear-headed decision was a promising sign in Lax v. CUNY, one of several cases over pervasive antisemitism at the school—a school once known for welcoming Jewish students when other when other schools excluded them.
But those days are over. CUNY is now known as a hotbed of Jew-hatred:
CUNY is the most antisemitic school in the country. The level of bigotry is well documented and they are facing several cases and investigations because of it. The suggestion that anyone was fired for being “pro-Palestine” is the least believable claim I have ever heard.
— AG (@AGHamilton29) March 27, 2024
As we reported here, Lax v. CUNY was brought by a group of Orthodox Jewish professors at Kingsborough Community College (Kingsborough), which is part of CUNY. Their complaint alleges “pervasive, anti-religious discrimination” by the school and, in particular, by leaders of the “New Caucus,” a political party of the labor union for CUNY faculty. They say that members of the New Caucus collaborated against them with another faculty group, the “Progressive Faculty Caucus,” (PFC) formed several years ago.
The two professors named as co-defendants in the case, Dominic Wetzel and Katherine Perea, were members of the New Caucus. The plaintiffs sued them along with CUNY for their role in the antisemitism at the school, as described by the court:
Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that the PFC denied entry to every observant Jewish applicant, including Lax [the plaintiff]; that the PFC and the New Caucus members lobbied against Lax and other observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members, including Lax; that the PFC and the New Caucus members wrote in a communist newspaper regarding their “struggle” against a “network of Zionists” among the faculty at Kingsborough, and made similar comments in a publicly distributed campus survey; that there were discussions between Wetzel and others that observant Jews were undesirable for PFC membership; that Perea engaged in a malicious and relentless campaign to get Goldstein [another plaintiff] fired because he was a Zionist; that an internal PFC email mentioned the need to “bring Violence to the Zionists on campus”; that anti-Semitic flyers were distributed on the Kingsborough campus; that a portrait of Goldstein’s’ father was defaced; that nails were found in the tires of cars belonging to Lax and Goldstein; and that the PFC members called for plaintiffs’ removal from their jobs at Kingsborough.
After the court denied CUNY’s motion to dismiss the case last year, Wetzel and Perea filed cross–claims[*] alleging First Amendment violations and breach of contract against CUNY for—among other things—failing to stop the plaintiffs from leveling charges of antisemitism at them.
If those cross-claims seem like a stretch, it’s because they are, according to New York Supreme Court Judge Gina Abadi, who granted CUNY’s motion to dismiss them last week.
Reading through the allegations, it’s hard not to ask, “So what?” after each one. The defendants seem to be grasping at straws:
53. Plaintiffs have incessantly complained of Defendant to CUNY using available processes and procedures, such as administrative complaints of discrimination, being a security risk, and breaching other CUNY codes and rules.
54. CUNY appears to be frightened of Plaintiffs or is at least curiously passive and inactive in dealing with their frivolous accusations against Defendant, and other faculty and staff, and the ensuing disruptions to the campus community.
55. Plaintiffs have, across a long series of lawsuits, EEOC complaints and media interviews, accused CUNY of being a highly anti-Semitic environment.
…
57. Incidentally, on information and belief, many of the faculty and staff Plaintiffs accuse of anti-Semitism themselves are Jewish, including several of the defendants herein. [Why should that matter?!]
58. Plaintiffs’ intentions motivating all of their initiatives against Defendant are to punish them and retaliate for their politically progressive views and criticism of Goldstein [one of the Orthodox Jewish plaintiffs].
59. CUNY has permitted and facilitated such retaliation by its failure to supervise Plaintiffs and to protect Defendant’s academic freedom. For example, when Plaintiffs have filed EEOC complaints including frivolous accusations implicating Defendant, such as that regarding the Friday night meeting [precluding attendance by Sabbath-observant faculty], above, CUNY failed to give Defendant notice these had been filed.
These so-called retaliatory measures, Wetzel and Perea claimed, “succeeded in shutting down” their free speech and academic freedom. And CUNY was complicit in them, they said.
Judge Abadi was not buying these cross-claims against CUNY at all. There was simply neither law nor facts to back them up:
Wetzel and Perea … assert that CUNY has permitted and facilitated retaliation by plaintiffs by its failure to supervise plaintiffs and to protect cross-claimants’ academic freedom. However, they do not specify how CUNY failed to supervise plaintiffs and how such alleged failure amounts to a violation of the First Amendment.
This cross claim is also devoid of any factual allegations as to how Wetzel and Perea’s interests and academic freedom were not protected by CUNY. While Wetzel and Perea allege that CUNY did not give them notice that EEOC complaints had been filed against it, they fail to cite to any legal authority indicating that CUNY was under any legal obligation to provide them with such notice. To the extent that Wetzel and Perea purport to assert that CUNY was oblig1ted to discourage plaintiffs from “using available processes and procedures, such as the filing of administrative complaints of discrimination,” including filing EEOC complaints, any such conduct by CUNY could constitute a violation of federal, state, and local anti-discrimination law.
And while the two professors claimed that the plaintiffs retaliated against them for their anti-Israel speech, progressive views, and criticism of one of the Jewish professors, they failed to allege retaliation by CUNY itself, the court said. Without more, their cross-claim was “patently insufficient” to charge CUNY with First Amendment retaliation.
Besides, CUNY, as a government entity, can’t be held liable for failing to prevent the plaintiffs from allegedly violating their First Amendment rights, since CUNY wasn’t charged with any affirmative duty to silence the plaintiffs, the court said. Nor was their any basis for a discrimination claim under state and local law based on CUNY condoning their conduct.
There was also nothing to support the professors’ allegations that CUNY was complicit in the plaintiffs’ charges of antisemitism against them. Nor was there any basis for a claim of viewpoint discrimination by the school, the court held.
The irony is that the defendants were asking the court to impute to CUNY a responsibility to protect them that would itself violate the plaintiffs‘ statutory rights against discrimination:
[T]he fact that CUNY permitted and did not prevent Plaintiffs from filing EEOC complaints or other complaints of religious discrimination did not constitute condoning discrimination against Wetzel and Perea by CUNY. … [P]reventing plaintiffs from exercising their rights to assert claims of discrimination against them based upon their religion would constitute a violation of the laws which afford plaintiffs legal protection from discrimination.
There was just no legal basis for the defendant professors’ constitutional claims against CUNY, the court concluded. The plaintiffs “were acting within their legal rights and CUNY could not deny them these rights.”
Wetzel and Perea also asserted a breach of contract cross-claim against CUNY based on violation of its campus code of conduct. But here again, the court points out, they didn’t allege that CUNY violated that code, only that:
plaintiffs violated the [the code of conduct], that CUNY received notice of these violations, and that plaintiffs’ “unendingly repeated actions and CUNY”s tolerance, acceptance and facilitation of them” constituted “a pattern and practice of First Amendment retaliation and viewpoint discrimination.”
And, again, they failed to include any law or facts to support their contracts claim, any more than they did with their failed First Amendment claim they base it on.
Besides, the court said the code of conduct doesn’t constitute a binding contract between the professors and CUNY. Wetzel and Perea failed to allege any facts to support one.
And as with their First Amendment claim, the defendants’ breach of contract claim compels a perverse result at the plaintiffs’ expense: They insist that CUNY should have stifled the plaintiffs’ complaints of religious discrimination against them. But that would just cause CUNY to violate federal and local laws against discrimination, the very laws the policy requires it to follow.
The court rejected the professors’ cross-claims because there was no basis whatsoever to support them.
The two defendants were right about one thing, though: CUNY should be held responsible—for the ongoing antisemitism it tolerates on its campuses. But that’s a responsibility they owe to their Jewish students and faculty who are victims of it, not to the antisemites getting away with it.
[*]The defendants’ cross-claims were the same, so the court treated them together.
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Comments
Does anybody teach at these F-ing joints?
It’s hard to follow. I was trying to figure out if there was a claim that Jews have any special privilege, and if not, what was the argument about.
It is complicated – CUNY is getting hit on all sides. This was about a claim brought by their co-defendants, not the plaintiffs.
The co-defendants said CUNY should have stopped the plaintiffs from calling them antisemites. It’s hard to understand because it makes no sense and they have nothing to back it up, like the judge said.
When one is being hit from all sides, the best defense is to do the right thing. You’ll still get hit but you’ll be able to hold your head high. CUNY should have shut down the discriminatory behavior against the Jewish faculty and students — while that would have enraged Drs. Wetzel and Perea, doing so would have spared it all the legal issues it has now and the repetitional hit it has suffered.
This looks like more blue vs. blue conflict. They will all have another chance to talk it over when they all meet at the election booths in November to vote for their favorite woke Dems.
look,,america is out of control which is the way the lefty needs us to be
whats it going to take to right this sinking ship!!!??