Considerations for Colleges and Universities With Unions in Light of New Title IX Regulations
In May 2020, Education Secretary Betsey DeVos signed new Title IX regulations in an effort to strengthen protections for all students. While all affected institutions of higher education are deeply focused on the new regulations, schools with unionized faculty and staff (and, in some cases, graduate students) should take note of certain special considerations discussed here.
To implement the new regulations, schools will need to adopt compliant policies and procedures or revise existing ones to bring them into compliance. This may require issuing policy manual or handbook revisions through existing policy review processes. With respect to unionized employees, the DOE has made it clear that the existence of a collective bargaining agreement (CBA) or the need to engage in union negotiations will not be viewed as a valid basis for noncompliance with the new regulations. Schools should therefore review their CBAs to determine how to proceed with implementation of the regulations. Relevant CBA provisions may include procedures for issuing new or modified policies; “reopener” clauses allowing for midterm negotiations over conflicts between the CBA and governing law; and management rights’ provisions which allow the adoption of new policies with or without union input. Even where a CBA is silent in all of these respects, the employer may still have an obligation to give the union notice and an opportunity to bargain over any changes to existing policies and procedures.
Schools should also be aware that federal labor law does not allow an employer to make unilateral changes to terms and conditions of employment, even when doing so is necessary to comply with another federal mandate (e.g., the new regulations), where there can be discretion over how compliance is achieved. This issue clearly arises with respect to the standard of evidence for determining responsibility for sexual harassment complaints. The new regulations allow schools to use either the preponderance of the evidence standard or the clear and convincing evidence standard, but they require the same standard to be used regardless of whether the respondent is a student or an employee. For many schools, to have a uniform standard, it will be necessary to change the standard for one or the other category of complaints. Determining which standard to change will likely be a subject of bargaining with unionized faculty and staff.
Similarly, the regulations identify certain specific grounds for appeal from determinations of responsibility and from dismissals of complaints, but they also allow schools to offer additional bases for appeal. Defining those additional bases could also be a subject of bargaining. Any other changes to existing investigation and hearing procedures which involve the exercise of discretion in determining how to achieve compliance with the new regulations may also be subject to mandatory bargaining.
In short, implementation of the regulations could, and likely will, involve varying approaches for different employee groups depending on the applicable policy and/or contractual framework.
In light of the short time frame provided for achieving compliance with the new regulations, schools are well-advised to consider these procedural and strategic issues, with the assistance of counsel where appropriate, before proceeding with implementation.