




































[Expositions 4.1&2 (2010) 34-37]  Expositions (online) ISSN: 1747-5376 

 

Is Yeshiva Relevant? 

MARC BOUSQUET 

Department of English 

Santa Clara University 

 

 

Yeshiva might easily never have happened. With the foolish vote of a single justice, swayed by 

the judicial activism of a former law-school administrator, an absurd law came into being. 

Today he’s known for a more recent liberal voting record, but it was his moderate 

conservatism that led Gerald Ford to appoint John Paul Stevens a Justice of the Supreme Court in 

1975. It seems fitting that Stevens featured the theme of “learning on the job” in appearances 

leading up to his retirement in 2010. During the first few years of his appointment, Stevens voted 

to reinstate the death penalty, to restrict first amendment rights, and to oppose affirmative action 

in university admissions. In later decisions, however, he joined in decisions opposing or chipping 

away at all of these positions.  

The same can be said for his service as the fifth vote in the Yeshiva decision, which packed a 

last-ditch legal fiction by an intransigent, lawbreaking employer into a poison pill still spreading 

through U. S. labor law. Since denying Yeshiva’s tenured faculty bargaining rights explicitly 

delineated for “professional employees” by the National Labor Relations Act (NLRA) with the 

fiction that participating in shared governance made them essentially “managerial” (thus 

excluded from NLRA protections), the majority opinion swiftly metastasized beyond the 

academy into hundreds of other workplaces, especially health care, with hundreds of thousands 

of nurses with modest “supervisory” duties losing long-established bargaining rights. (Not 

incidentally, the majority opinion also crushed several nascent efforts to organize physicians’ 

unions in the managed-care industry.) By 2001, Justice Stevens had flip-flopped on the 

managerial exclusion and composed a dissent in the key health-care case aiming – and failing – 

to contain the spreading influence of his earlier assent in Yeshiva. 

A one-time graduate student in English, Stevens’s own vote, together with the views of his 

colleagues in the Yeshiva majority, may well have been informed by hazy, fatuous old-boys’ club 

recollections of university life, as Justice Brennan’s blistering dissent alleges: “The court’s 

perception of the Yeshiva faculty’s status is distorted by the rose-colored lens through which it 

views the governance structure of the modern-day university.”
1
 But the real judicial activist 

behind Yeshiva was operating on more than hazy liberal-arts experiences; he was projecting 

views developed as a long-serving member of campus administration. Thomas Hughes Mulligan 

graduated from Fordham, stayed there for his J. D., and then served in counter-intelligence, 

before returning to his alma mater as a law professor. From 1956 to 1971, Mulligan served as 

dean of Fordham Law School, until he was appointed to the Second Circuit Court of Appeals by 

Richard Nixon. As some of his speeches on the subject of his 1960s term as dean make clear, he 



35  Bousquet 

 

preferred power concentrated in the administration, and viewed with contempt most of the values 

expressed by the rising power of faculty and students. 

As a long-serving administrator at an institution much like Yeshiva who had spoken out about 

the need to contain the rising influence of faculty, Mulligan might reasonably have recused 

himself from the Yeshiva case when it came before the Second Circuit. Instead, he took the lead 

among his colleagues and wrote the opinion, an astonishingly creative misconstruction of the 

faculty role in shared governance. Engaging in the most blatant form of judicial activism, the 

Second Circuit substituted its idiosyncratic judgment for the judgment of the agency assigned to 

interpret the National Labor Relations Act, and refused to order enforcement of the Board’s 

decision. 

Before Dean Mulligan got hold of the case, the law governing faculty bargaining rights 

approached crystal clarity, with the National Labor Relations Act clearly delineating those rights 

for “professional employees.” Through the late 1960s and the ’70s, faculty at institutions of all 

types bargained successfully, and, in public non-research institutions, unionization had swiftly 

become simply the norm (as was already the case for public schoolteachers, who had joined with 

other public-sector employees to win sweeping new legal protections for bargaining rights). 

When the faculty at Yeshiva organized, as at dozens of other private institutions, the National 

Labor Relations Board quickly certified the union and swept aside the administration's claim that 

faculty input over hiring and evaluation, and control over curricula and grading, turned them into 

“managerial employees” excluded from the Act’s protections. When Yeshiva subsequently 

refused to bargain, the NLRB ordered them to the table. 

Today, faculty at over 1,000 public college and university campuses bargain collectively. The 

only reason hundreds of private campuses aren’t likewise organized is the specious reasoning 

embodied in the transparently union-hostile opinion of Dean Mulligan’s Second Circuit, 

followed by the foggy vote of John Paul Stevens. As a matter of law, Yeshiva is a travesty and 

should be overturned. 

As a matter of practice, however, Yeshiva is losing relevance. Since three-quarters of all 

faculty are now graduate students or lecturers on casual appointment, they can hardly be 

described as managerial, and can’t be denied bargaining rights on that basis. 

Instead, today, private institutions with a religious affiliation rely on defenses based in the 

claim that faculty employees at “religious institutions” are excluded from NLRA protections. 

While the NLRB has consistently distinguished between institutions with a substantial religious 

character and those with a religious affiliation, a 2002 D. C. Circuit Court opinion involving the 

University of Great Falls, a small Montana institution, radically undermined the Board’s 

authority. Under Great Falls, courts may compel the NLRB to accept at face value the claims to 

a religious exemption of any institution that “presents itself to the public” as a religious 

institution. Denying NLRB the power to distinguish between real and false claims to the 

exemption is a transparent assault on long-established employee rights and protections – until 

this bad law is overturned, under the ruling, essentially, any employer that claims the exemption 



Is Yeshiva Relevant?  36 

may have it. Unlike Yeshiva, the ruling applies comprehensively – to part-time faculty, students, 

and non-teaching staff.
2
 

Sadly, this sweeping, radical new barrier to organizing came into being in much the same way 

that Yeshiva did, with the determination of a conservative activist Circuit Court judge. Backed by 

Jesse Helms and appointed by Ronald Reagan to fill the seat vacated by Antonin Scalia’s 

elevation to the Supreme Court, and at this writing the chief justice of the D. C. Circuit, David 

Sentelle has been described by The New York Times as “one of the federal judiciary’s most 

extreme conservatives.”
3
 Sentelle’s vote was instrumental in overturning the convictions of 

Oliver North and John Poindexter. He replaced the moderate Robert Fiske with the right-wing 

ideologue Kenneth Starr as independent counsel in the Whitewater investigation. A long-term 

Republican party operative, even four years after his appointment to the federal bench, Sentelle 

was still publishing right-wing screeds against “leftist heretics” who he claimed sought to 

establish “a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially 

permissive state.”
 4

 

Sentelle’s transparently activist opinion in the 2002 Great Falls decision gutted the NLRB’s 

authority so far beyond reason that several attempts were mounted as a test of the ruling. The 

best of these came forward in March 2009, during the first year of the Obama administration. 

Fully supported by the NLRB’s ruling that the school’s ties to the Presbyterian Church were too 

insubstantial to justify a religious exemption, the UAW-affiliated faculty of Carroll College, like 

the faculty of Yeshiva, simply came to Federal court seeking enforcement of the Board’s ruling 

in its case. But who did the NLRB and the faculty union find waiting for them? A fellow named 

Thomas Griffith, who arrived at the D. C. Circuit Court directly from a five-year stint as general 

counsel and assistant to the president of Brigham Young University. 

Unsurprisingly for the recent former general counsel of a religiously-affiliated university, 

Griffith’s 2009 opinion in the Carroll case bluntly applies the 2002 ruling advanced by his 

sitting chief: “Under Great Falls, Carroll is exempt from the NLRB’s jurisdiction. We thus need 

not address Carroll’s argument that its faculty members are managerial employees who fall 

outside the protection of the NLRA. We grant Carroll’s petition for review, vacate the decision 

and order of the NLRB, and deny the Board’s cross-petition for enforcement.”
5
 

So now what? When we face these shabby rulings, does it make sense for us to assume that 

the decision proceeded from ultimately reasonable arguments advanced by truth-seekers? Are 

they arguments put forward in an adversarial system but refereed with a reasonable degree of 

impartiality and with the prospect of eventual accountability in higher courts? Of course not. We 

need to see clearly that these are specious, intellectually dishonest arguments by activist 

reactionaries abusing the power of the bench to deny fundamental human rights. We need to see 

clearly that these rulings are the product of a flawed, inherently political process that is likely to 

disadvantage both truth and justice for decades to come. Few observers would say, for instance, 

that the current Supreme Court is the place to test David Sentelle’s opinion in Great Falls. 



37  Bousquet 

 

But if the Supreme Court can’t help us, what should we do? If the United Auto Workers and 

American Federation of Teachers aren’t willing to spend any more of their resources fighting a 

corrupt judiciary, what should we do? 

Ultimately what Yeshiva (1980), Great Falls (2002) and Carroll (2009) teach us is simple: 

what matters more than the law is the movement. The individuals who used (or abused) their 

power in these decisions were part of a social reaction to liberation movements of the 1960s and 

1970s, including workplace democracy, feminism, and civil rights. They aren’t lone wolves; 

they’re conservative activists bound in a net of common culture, values, and mutual support. 

They didn’t have law, precedent, or reason on their side; they simply imposed their will and 

made new law out of the power represented by their movement. 

It would be tremendously foolish if we permitted any of these rulings to constrain us. We can 

build a movement with the students, nurses, young lawyers, schoolteachers, and countless others 

affected by exploitative and super-exploitative patterns of employment. We can overcome this 

dense lattice of hostile law. We can and must imitate the 1960s movement of public employees 

whose self-organization was illegal and yet also an unstoppable force for writing new law 

reflecting truth, justice, fairness, and democracy. 

Is Yeshiva relevant? Are Great Falls and Carroll? Not to a movement, no – no more so than 

any of the thousands of municipal statutes once theoretically constraining the movement of 

schoolteachers and sanitation workers. The tightest straps on those schoolteachers and sanitation 

workers were never the law; they were emotional and intellectual and habitual – habits of 

deference to, and trust in, authority. They burst free. We can too. 

 

Notes 

 

1. 444 U. S. 672, 702 (1980). 

2. See University of Great Falls v. NLRB, 278 F.3d 1335 (D. C. Cir. 2002). 

3. New York Times, August 17, 1994, quoted in Joe Conason and Gene Lyons, The Hunting of the 

President (New York: Macmillan, 2000), 131 (cited 387). 

4. See Sentelle’s review of Robert H. Bork’s The Tempting of America: The Political Seduction of the 

Law, “The Clerisy of Power,” Harvard Journal of Law and Public Policy 14/1 (1991): 228. 

5. See Carroll College, Inc., v. NLRB, 558 F.3d 568, 575 (D. C. Cir. 2009). 


