Hello Woodshed, My Old Friend
Greedy Education Unions Gets Humiliated in Court
It is suitable to note upfront that any judicial decision that goes your way is brilliant, and those that do not are flawed—confirmation bias and all that. It is the application or misapplication of law as interpreted by black robed sages, subject to reversal by their peers always and forever until Congress produces something approaching clarity on the matter.
We do not expect the latter given that Congress has, for decades, been delegating its responsibilities to the Executive branch (and some number of so-called independent agencies) to avoid embarrassing questions at Town Halls as re-election time nears. Promises to take a look after alleging the matter beyond their control assumes a constituency of dunces, an objective that Federal and local education policy has long sought to fulfill.
This “avoiding responsibility that belongs to them” parallels the Judicial impulse to assume responsibilities that do not. Look no further than the recent proliferation of district court injunctions by judges seeking to be social media influencers rather than arbiters of what was written by Congress and signed into law by past presidents, filtered through the limiting lens of the Constitution—judicial activism by legal minds who were apparently unelectable but wanted to make law nonetheless.
What better solution than a lifetime appointment to the Bench with a slim but at least slightly arousing possibility of finding oneself a member of the US Supreme Court? A role subject to the forces of politics despite our Founders’ efforts to shield it.
All in all, not much can be said in favor of temps (even those with lifetime appointments) deciding the meaning of words in ways that would, to the common man, appear the work of contortionists. It is this reality that makes this decision (accepting the likelihood of some confirmation bias) so enjoyable to read.
Hello Woodshed, My Old Friend
If you’d asked me twenty years ago if reading any judicial decision could be enjoyed, I’d have thought you crazy, but here I am, nearly twenty years into the not-quite-so-new media political punditry business, and this thing was interesting and amusing.
Judges do have a sense of humor.
In a brilliant opinion Monday, New York federal district court Judge Mary Kay Vyskocil not only denied the preliminary injunction sought by the American Association of University Professors and the American Federation of Teachers, she threw out their lawsuit against the Trump administration entirely.
Brilliant because it took a lawsuit by the American Federation of Teachers (AFT) and the American Association of University Professors (AAUP), which it represents, and made them and their team of eleven lawyers look foolish.
The nexus of greed centers on Columbia University and 400 million in grant terminations (as well as some 5 billion in future associated funding). Trump cut the cord, and the AFT and AAUP demanded the court force taxpayers to fund them ‘cuz reasons.
Long story short, the judge explained that the plaintiffs had no standing, not just on one count, but on all of them. From academic freedom to free speech to failing to follow procedure, these academics and their union felt confident that they could force the Trump Administration to return the funds, but every contract they claimed was unconstitutionally or at least illegally cut short was with Columbia University, not with individuals.
Columbia was not even a part of this lawsuit, or as the Judge observed, “conspicuously absent.”
In her unsparing opinion, Vyskocil calls a spade a spade, writing, “With no apparent sense of irony, lawyers for an organization called ‘Protect Democracy’ insist that a district court judge should order the Executive Branch immediately to restore the flow of taxpayer dollars to an elite university, which funding Defendants represent is inconsistent with the priorities of the duly elected President of the United States.”
But that was just a warm-up. I read the entire decision, not something I typically make time for, but was rewarded for the effort, which I now share with you (citations removed).
Plaintiffs unconvincingly assert that “[e]ach Plaintiff independently has' standing in its own right 'because Defendants’ actions have ‘directly affected and interfered with [Plaintiffs’]core business activities,’ not merely their ‘abstract social interests.’ Plaintiffs’ core business is to be labor unions. Query how many of the “1.8 million” dues-paying members of the AFT, including nurses and paraprofessionals, believe its core functions include paying a cavalry of lawyers to argue the “transcendent” importance of taxpayer funding for an elite university.
Bwahahahaha!
Wait, there’s more.
The AAUP submits that it has suffered an injury because it has “diverted internal resources of staff time and expenses to assist Columbia members in the [Middle East, South Asian, and African Studies, i.e.,] MESAAS Department and other departments prepare to respond to the Trump Administration’s demand[] that the MESAAS Department be put under academic receivership, and to respond to the internal governance steps Columbia has announced.” Fatally for Plaintiffs, the Supreme Court has held that “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.”
The government is not obligated to rob taxpayers to pave the way for academic freedom or free speech, a tactic the Corporation for Public Broadcasting (CPB) attempted when NPR and PBS received notice of impending cuts to their budgets. “There is no requirement that the government fund anything enumerated in the Bill of Rights, such that not funding them is a violation of those rights.”
I’d also like to interject here that the AAUP website differs only slightly from that of CommunismUSA.org. The latter fully embraces the color red, while the former is a bit more subtle. Everything else, at least where the subject matter crosses paths, is the same.
Back to Judge Mary Kay Vyskocil.
The loss of professional opportunities or income may certainly constitute an injury in some cases. However, here, Plaintiffs have not demonstrated that it makes a difference to their members whether the funding for their research and salaries comes from American taxpayers, non-party Columbia’s multi-billion-dollar endowment, the largess of Columbia’s donors, or the eye-popping tuition bills paid by Columbia students, including the Jewish students who apparently paid for the privilege of being threatened with violence on their way to class.
This is beautiful because it is demonstrably true that neither the union nor its members (professors) did much, if anything, to protect the free speech and academic freedom of Jewish Students while participating in or promoting (encouraging) the violations that cost Columbia grants they could no longer assign to the plaintiffs.
One more.
Furthermore, Plaintiffs stress that “[d]espite Columbia’s compliance,” funding has not been restored. Yet Plaintiffs apparently fail to grasp that one possible inference from this state of affairs is that funding cuts were made and maintained not to punish speech but because, for example, it is not consistent with the priorities of the NIH under the current, democratically- elected President, to continue to fund Columbia’s research into the impact of climate change on the mental health of women in East Africa. Declining to fund such research is not a First Amendment injury.
If you can find the time, the decision is an interesting read, with additional Easter Eggs not shared here. A riot act of sorts about how professors at an obscenely expensive school with an enormous endowment could claim injury on these grounds or why their lawyers could make them believe relief was possible.
But it is, at least until the appeal. We’ve seen District Court judges across the country ignore what Judge Vyskocil saw as common judicial sense. It’s not her job nor theirs, but as we’ve seen, they do it. Often.
The problem then appears to be that neither AFT nor the AAUP did a proper job of judge shopping, failing by lack of effort or jurisdictional limitations to find a robed sage with the appropriate confirmation bias.
Thanks for reading. Before you go, please consider subscribing or upgrading to paid.
Sometimes judges get right!
Beautiful information and the writing put a smile on my face. Thank you!