By Brandi O. Brown, J.D.
Although CUNY walked away with $251M in federal pandemic aid, it chose to provide all of that money to students in the form of aid, and laid off 2,800 of the 14,000 adjunct faculty members who usually help teach them.
A federal district court in New York declined to direct the City University of New York to reinstate 2,800 adjuncts whose appointments were not renewed for the Fall 2020 semester. Although the employer obtained funding under the CARES Act, it chose to apply all of the funds it received to student aid and to slash adjunct faculty numbers. The court found there was no likelihood of success on the merits of the two claims brought by the union representing the adjunct faculty, one under Section 1983 and the other putatively under the CARES Act itself. The plaintiff’s motion for a preliminary injunction was denied and the court stayed the case, noting the likelihood that it would grant a motion to dismiss by the defendants (The Professional Staff Congress/CUNY v. Rodriguez, August 12, 2020, Rakoff, J.).
Aid for universities in midst of pandemic. In March 2020, in response to the pandemic, the U.S. Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). Under that Act, Congress provided new federal funding for colleges and universities. Under one provision of that Act, section 18004, Congress allocated nearly $14 billion to a relief fund to be used to cover any costs “associated with significant changes to the delivery of instruction due to the coronavirus.”
That relief, the court explained, is “cabined in two ways.” First, at least 50 percent of the funds received by an institution must be used “to provide emergency financial aid grants to students” for various expenses relating to disruption of campus operations. Second, in section 18006 of the Act, the legislature provided that institutions that receive the “Education Stability Fund” money “shall to the greatest extent practicable continue to pay its employees and contractors during the period of any disruptions or closures related to the coronavirus.”
CUNY obtains aid. CUNY was one of the universities that sought and received funding under the Act. It was awarded $251 million and although it initially allocated a little less than half of that money to emergency aid payments that were made directly to students, subsequently it committed to allocating the entire amount to student aid. Shortly after receiving the award from the federal government, the university began to negotiate its reappointment deadline with the union that represents 30,000 CUNY staff members. Ultimately it declined to renew the appointments of 2,800 of its 14,000 adjunct faculty members.
The union brought two causes of action—one under Section 1983 and the other directly under the CARES Act. It moved for a preliminary injunction to direct the university to reinstate the adjuncts through the end of the fall semester. The court denied the motion.
Section 1983 claim unlikely to succeed. In its cause of action under Section 1983, the union contended that the university’s failure to comply with section 18006 of the CARES Act deprived adjunct faculty of their federal rights under color of law because it did not “to the greatest extent practicable” continue to pay them. The court concluded that the union did not have a legally cognizable cause of action under this theory.
In order to seek redress through section 1983, the court explained, an employee must assert violation of a federal right and not just a violation of federal law. Courts look to the three Blessing factors to determine whether a statutory provision will give rise to a federal right. Although one of those factors was “plainly met” because the statute had imposed a “binding obligation” on the states, the others were not.
No individual rights-creating language. Under the first Blessing factor, the union had to show that the Act “manifests an ‘unambiguous intent’ to confer individual rights on the employees.” To do so it must use “rights-creating language,” i.e., language that indicates a focus on the individual’s needs, rather than the operations of the regulated entity. However, in this case, the court explained, section 18006 focused on the regulated entity’s operations, which was a strong sign that it did not confer individual rights.
In the Act, the court explained, Congress “spoke of employees in the aggregate, and the need of the institution to try to retain them consistent with the institution’s practicability.” Such language suggested “a generalized duty” on the part of the institution, “rather than an individualized right vested in each employee.” Moreover, the section was not “calibrated to the particular needs of the individuals within the putatively benefited class,” the court explained, such as could be found in cases in which the Second Circuit had found individualized rights.
Too vague to apply. With regard to the second Blessing factor, which also was not met, even if an exercisable individual right were conferred, it would not be fit for judicial review because it would be too vague to apply. Section 18006’s use of “to the greatest extent practicable” was “effectively lacking in any real standards.” In fact, the court explained, in this regard “the CARES Act provides not a shred of guidance.” Thus it was distinguishable from the cases relied upon by the union. The union’s arguments otherwise were, basically, an attempt to rewrite the statute, the court explained, and if Congress had wanted to impose the spending requirements on recipients suggested by the union, “it plainly would have done so.”
CARES Act claim’s success also unlikely. In its cause of action directly under Section 18006, the court likewise concluded that there was no legally cognizable cause of action. The Act does not include an express cause of action for enforcement of section 18006 and, therefore, the court’s role in determining whether an implied right of action existed did not differ from its consideration of whether a personal right existed for purposes of Section 1983.
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