On January 29, 2026, the Supreme Court of New Jersey held, in the case of In the Matter of Rutgers, the State University of New Jersey v. AFSCME Local 888, American Federal of State, County and Municipal Employees, AFL-CIO, that federal Title IX regulations preempted conflicting grievance procedures under a collective negotiation agreement (CNA) between the University and its employees' union. This decision highlights an increasing split across circuits and states regarding this issue. While federal courts have yet to address such preemption issues, this New Jersey case adds another voice to the conversation.
What You Need to Know:
- The New Jersey Supreme Court considered whether the CNA's grievance procedures conflicted with, and were therefore preempted by, the 2020 federal Title IX regulations (the "Title IX Regulations" or "Federal Regulations").[i]
- The Court, applying federal preemption law, held that the CNA's arbitration process excluded the alleged victim from participation in proceedings in violation of the Title IX Regulations.
- Due to this conflict, the Court found the Title IX Regulations preempted the CNA's grievance procedures.
Factual Background: University Employee Initiates Grievance Procedures Under Collective Negotiation Agreement
In May 2020, the United States Department of Education promulgated Title IX regulations prescribing the procedures institutions must follow in addressing sexual harassment. Section 106.45(b) of the Title IX Regulations requires that any grievance procedures beyond those specified in that section "must apply equally to both" the complainant and the respondent. 34 C.F.R. § 106.45(b). The regulations also contain a preemption clause, Section 106.6(h), which mandates, "[t]o the extent of a conflict between State or local law and [T]itle IX . . . the obligation to comply with § . . . 106.45 is not obviated or alleviated by any State or local law."
Also in 2020, Rutgers adopted a Title IX policy containing grievance procedures compliant with the Title IX Regulations (the "Rutgers Title IX Policy"). Rutgers is subject to Title IX because it receives federal funding.
In February 2022, a female custodian and employee filed a complaint against her male co-worker, J.M., alleging J.M. physically assaulted and sexually harassed her. The complaint initiated a grievance procedure under the Rutgers Title IX Policy. After an investigation and hearing in which both parties participated, the decisionmakers found that J.M. violated the Rutgers Title IX Policy and the University Policy Prohibiting Discrimination and Harassment. They found just cause to terminate J.M.'s employment. J.M. appealed but was unsuccessful. He was terminated in September 2022.
Pursuant to the CNA, J.M.'s CNA representatives ("Local 888") filed a grievance challenging J.M.'s termination and requested a meeting to determine whether he was terminated for just cause. Rutgers denied the meeting request on the ground that the Title IX Regulations preempted the CNA's grievance procedures. Thereafter, Local 888 requested arbitration through New Jersey's Public Employment Relations Commission (PERC), arguing that Rutgers violated Article 4 of the CNA by refusing to arbitrate. Rutgers requested that PERC refrain from arbitration due to the preemption issue, but PERC denied Rutgers' request. Applying state preemption law, PERC found the Title IX Regulations did not preempt the CNA's post-disciplinary grievance arbitration.
Rutgers appealed the PERC decision to the Appellate Division, which affirmed, finding Local 888's arbitration request was not explicitly preempted by the Title IX Regulations. Rutgers appealed again, and the New Jersey Supreme Court granted its petition for certification.
New Jersey Supreme Court Opinion: Federal Title IX Regulations Preempt Conflicting CNA Grievance Procedures
Rutgers argued before the New Jersey Supreme Court that the Title IX Regulations preempted the CNA arbitration because, per Section 106.6(h) of the Federal Regulations, the Title IX Regulations preempt state law to the extent a conflict arises between the two. Per Rutgers, Article 4 of the CNA—which did not include the complainant as a party to a grievance arbitration—conflicted with Section 106.45(b) of the Title IX Regulations, which requires that any grievance procedures beyond those specified in that section "must apply equally to both" the alleged victim and the alleged harasser. Local 888 and PERC countered that state—not federal—preemption law governed, and that there was no conflict because the Title IX Regulations govern only the pre-discipline procedures under a CNA. Local 888 also argued that since Rutgers' Title IX Policy requires employee discipline to be consistent with the terms of the CNA, Rutgers had effectively "conceded that any discipline imposed through the Title IX process upon a Local 888 member would be subject to appeal through the contractual grievance procedure" set forth in Article 4 of the CNA. PERC further argued that the Title IX Regulations were effectively incorporated by reference as terms of the CNA.
The Court, agreeing with Rutgers, held that federal preemption law applied, pursuant to which federal agency regulations are given the same preemptive effect as federal statutes. The Court also held that the Title IX Regulations cover both pre-disciplinary and post-disciplinary matters. The Court determined the CNA's grievance procedures conflicted with the Title IX Regulations because the CNA's arbitration process excluded the complainant in violation of Section 106.45(b) of the Title IX Regulations. While Rutgers may have shared "some" interests with the complainant, it was "not her functional equivalent" and could not effectively represent her interests at the arbitration. The grievance process would only apply equally to both the complainant and J.M. if they were both parties to the arbitration. Since the complainant was excluded from the arbitration, the CNA's grievance procedure conflicted with, and was therefore preempted by, the Federal Regulations.
Critically, the Court opined: "Further, the requested arbitration serves as a collateral attack on the Title IX process and defeats the Regulations' objective to ensure that the grievance process treats parties equitably." Id. at 24. Because a "do-over" through the arbitration procedure would "'stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' as expounded by the authorized agency," it could not legally be given effect. Id. (citation omitted).
Accordingly, the Court reversed the judgment of the Appellate Division and PERC's final agency decision.
Impact of the Court's Ruling
The interaction between federal Title IX Regulations and collective bargaining grievance procedures is—to say the least—complex. This case joins several other state opinions recognizing conflicts between federal regulations and collective bargaining agreements. It is the first, however, to explicitly address the preemptive effect of federal Title IX regulations on collective bargaining grievance procedures and provides a useful starting point in evaluating conflicts between your institution's collective bargaining agreements and Title IX.
The Higher Education Industry Group at Saul Ewing will continue to monitor this complex and evolving area of the law. Please do not hesitate to contact either of the authors or your regular Saul Ewing attorney with any questions about this alert.
[i] The specific federal regulations at issue were those promulgated in 2020 by the U.S. Department of Education pursuant to Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 to 1689. Those regulations were codified at 34 C.F.R. §§ 106.1 to .82. See also Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026 (May 19, 2020).
