Title IX Preempts Public University Labor Contract Grievance Procedure, According to New Jersey Supreme Court

The New Jersey Supreme Court ruled on January 29, 2026, that Title IX—the federal law that prohibits sex discrimination in all publicly-funded educational institutions—preempted the grievance procedure in a labor contract between Rutgers University and AFSCME Local 888. Consequently, the court overturned a lower court order that had required Rutgers to arbitrate the grievance of a union employee fired based upon a Title IX complaint against him. The court also determined that the university and union could renegotiate their grievance procedure to comply with Title IX, but did not require them to do so.

The case—In the Matter of Rutgers v. AFSCME Local 888—focused on a public university with a labor contract governed by state law. That contract permitted employees to challenge discipline or discharge decisions against them, including such actions based on Title IX complaints, but did not permit the Title IX complainant any similar review or appeal rights.

While the decision does not directly apply to private universities covered by the federal National Labor Relations Act, the same policy and federal preemption considerations could apply in that context. Both public and private institutions should therefore review their collective bargaining agreements to see if grievance procedures conflict with Title IX’s protections. If so, the institutions should consider seeking legal guidance about potential exposures and remedies.  

Background and Summary of Court’s Opinion

In February 2022, a Rutgers custodial employee (“Jane”) filed a Title IX complaint alleging that her coworker, J.M., physically assaulted and sexually harassed her. Rutgers, following its Title IX Policy adopted under the U.S. Department of Education’s 2020 Title IX Regulations, conducted an investigation, issued a detailed report, and held a live hearing where both parties participated. Title IX decision-makers found J.M. responsible for violations of the Policy and determined termination was supported by just cause. J.M. appealed the determination on multiple grounds, but Rutgers denied the appeal under its Title IX procedures and terminated his employment in September 2022.

AFSCME Local 888 then challenged the termination by filing a grievance under its collective negotiation agreement (CNA) with Rutgers, which provided a four‑step grievance process culminating in binding arbitration. Rutgers objected to proceeding, asserting that the CNA’s arbitration process conflicted with Title IX because the CNA afforded appeal rights only to the disciplined employee and the union—but not to Jane, who had filed the Title IX complaint. Under the CNA, Jane had no right to receive notice, participate, present arguments, or submit written statements in arbitration.

New Jersey’s Public Employment Relations Commission ordered Rutgers to proceed with arbitration, and an intermediate appellate court affirmed that order. It concluded that Title IX governed only pre‑disciplinary procedures and that Rutgers could protect Jane’s interests during arbitration. The New Jersey Supreme Court disagreed, however, holding that Title IX’s grievance and appeal requirements apply to both pre‑ and post‑disciplinary proceedings. The court found a fatal conflict between Title IX’s 34 C.F.R. §106.45(b)—which mandates equal procedural rights to complainants and respondents—and the CNA’s arbitration structure, which excluded Jane.

The court concluded that arbitration would constitute a collateral attack on Rutgers’s Title IX process, potentially creating an inconsistent result (such as an order to reinstate J.M.’s employment, contrary to the university’s Title IX decisionmaker) through a procedure in which the complainant had no right to participate. Accordingly, the court held that the CNA’s arbitration provisions were preempted by federal law and could not be enforced in this Title IX proceeding.

Summary of Key Legal Findings¹

• Title IX mandates that all grievance and appeal procedures apply equally to complainants and respondents.
• The CNA created an appeal path for J.M. that was not equally available to Jane, violating 34 C.F.R. §106.45(b).
• Arbitration under the CNA could result in a determination inconsistent with the Title IX process, undermining federal mandates for equal appeal and grievance procedures.

Practical Implications

While the court decision applies only to the grievance procedure in the Rutgers/AFSCME labor contract, the practical implications underlying it arguably apply to all Title IX-covered public and private schools, colleges, and universities with unionized employees entitled to challenge Title IX discipline under a labor contract’s grievance and arbitration procedure.

Labor relations leaders and legal counsel at educational institutions should consider: 

1. Reviewing collective bargaining agreements to identify any post‑disciplinary grievance or arbitration procedures that do not provide equal rights to both parties in a Title IX matter.
2. Whether CBA grievance provisions can be made Title IX-compliant through renegotiation or some other process.
3. Ensuring that supplemental appeals or review mechanisms apply equally to Title IX complainants and respondents.
4. Avoiding reliance on employer or union representation as a substitute for complainant participation in CBA-required procedures since Title IX regulations require independent, equal procedural rights.