CUNY Needn't Use Virus Relief Funds To Rehire Profs: Judge

By Hailey Konnath
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Law360 (August 12, 2020, 7:33 PM EDT) -- A New York federal judge on Wednesday ruled that the City University of New York isn't required to reinstate thousands of faculty members it recently laid off, taking issue with a union's claim that the coronavirus relief bill calls on the school to retain those members after receiving federal aid.

The Professional Staff Congress, a union representing professional CUNY employees, had claimed that the school illegally let go of 2,800 adjunct faculty and staff members after receiving $251 million in federal coronavirus relief. Under the Coronavirus Aid, Relief and Economic Security Act, employees are to be paid "to the greatest extent practicable," and the union has argued that means that if CUNY has the cash to do so, it must.

The union also claimed that CUNY has deprived adjunct employees of their federal rights under color of state law. It requested a preliminary injunction requiring the school to reinstate the laid-off employees.

But U.S. District Judge Jed Rakoff on Wednesday denied the union's motion for a preliminary injunction, holding that Congress didn't intend to create a private remedy for enforcement of the relevant relief bill provision. The act's requirement that educational institutions keep paying employees "to the greatest extent practicable" isn't a right enforceable by the employees themselves, he said.

Specifically, the union hasn't shown that the relevant provision of the relief bill is focused on the needs of the individuals, in this case, the professors, rather than on the operations of CUNY, Judge Rakoff said. And that means the law doesn't create an individual right to continued employment on the part of the adjuncts represented by the union, the judge said.

"Rather than, for example, stating that the funding recipients shall, to the greatest extent practicable, retain each employee, Congress instead spoke of employees in the aggregate, and the need of the institution to try to retain them consistent with the institution's practicability," Judge Rakoff said. "That language suggests a generalized duty imposed on the institution rather than an individualized right vested in each employee."

On top of that, the law provides no statutory guidance as to how a funding recipient should determine the "practicability" of retaining its employees, Judge Rakoff added. Therefore, even if the provision did confer a right on adjunct employees, that right "would be too vague for consistent and meaningful judicial enforcement," he said.

PSC President Barbara Bowen said in a statement Wednesday that the "disappointing ruling does not change the PSC's commitment to fight for the jobs and safety of all of our members."

"Unions and working people cannot rely on the courts as our only vehicle of struggle," Bowen said. "The PSC will continue to fight on every front for the thousands of adjuncts who were callously thrown away by CUNY and for every member of the faculty and professional staff. The union is also exploring the possibility of an appeal of the judge's order."

The coronavirus relief bill at the center of the dispute was passed in March. It allocated $31 billion for educational institutions.

The union lodged its suit on July 1, claiming CUNY fell short of the law's requirement that universities continue to pay employees and contractors if possible. Specifically, it argued that the relief bill amounted to a contract by which the university agreed to preserve its payroll in exchange for receiving federal funds, and the adjuncts could sue to enforce it because they should've benefitted from the deal.

CUNY has argued that the law doesn't create a path for worker lawsuits claiming that a university misused coronavirus aid and the union has no right to file a CARES Act suit in the first place. The relief bill funds are being used to support the university's primary mission: helping students transition to remote learning, the school said.

"Put bluntly, plaintiff asserts that its members' interest in employment is more important than the students' interest in being able to continue their education in this time of crisis," the university said.

CUNY declined to comment Wednesday.

The union is represented by Hanan B. Kolko, Kate M. Swearengen and Dan M. Nesbitt of Cohen Weiss & Simon LLP, Peter L. Zwiebach of the Professional Staff Congress and Michael J. Del Piano of New York State United Teachers.

CUNY is represented by Clement J. Colucci of the New York attorney general's office.

The case is Professional Staff Congress/CUNY v. The City University of New York, case number 1:20-cv-05060, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Anne Cullen, Kevin Stawicki and Jon Steingart. Editing by Jay Jackson Jr.

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Case Information

Case Title

Professional Staff Congress/CUNY v. The City University of New York

Case Number



New York Southern

Nature of Suit

Other Statutory Actions


Jed S. Rakoff

Date Filed

July 01, 2020

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