How It Happened

In February 2022, a female custodian at Rutgers University filed a Title IX complaint alleging that her male coworker, identified in court documents as J.M., physically assaulted her and engaged in a pattern of sexual harassment. Rutgers initiated a formal investigation under its federally mandated Title IX grievance policy.

The investigation followed the procedural requirements of 2020 Department of Education Title IX regulations: detailed report, formal hearing, opportunity for both parties to participate, cross-examination through advisors, written determination. J.M. was provided outside counsel at university expense. Both Jane and J.M. participated in the hearing.

Rutgers’ Title IX decision-makers determined that J.M. violated two provisions of the university’s Title IX policy and found just cause existed for terminating his employment. J.M. appealed the determination on grounds of procedural irregularity, new information, and bias. His appeal was denied. In September 2022, Rutgers terminated him.

AFSCME Local 888, the union representing both Jane and J.M., then filed a grievance on behalf of J.M. under Article 4 of their 2019 collective negotiation agreement. The CNA explicitly guarantees that “no employee shall be discharged, suspended, or disciplined in any way except for just cause” and that the “sole right and remedy” for any employee claiming unjust termination “shall be to file a grievance through and in accordance with the grievance procedure.”

Rutgers refused to arbitrate, asserting that federal Title IX regulations preempt the union contract. Local 888 submitted the dispute to the Public Employment Relations Commission (PERC), the state agency with jurisdiction over public sector labor disputes. PERC sided with the union. Rutgers appealed. The Appellate Division affirmed PERC. Rutgers appealed again. The New Jersey Supreme Court agreed to hear the case.

“Any provisions, rules or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment must apply equally to both parties.”

On January 29, 2026, the New Jersey Supreme Court issued a unanimous decision authored by Justice Fasciale: the Title IX regulations preempt the union’s arbitration process because the victim of the alleged harassment would not be a party to that arbitration. Federal law, the court held, requires that any appeal process “apply equally” to both the accused and the accuser. Because the CNA arbitration would only include J.M., Local 888, and Rutgers, Jane would be excluded. That inequality conflicts with federal mandates. When federal law conflicts with state law or private agreements, federal law wins.

The Non-Financial Ledger

Jane reported sexual harassment at work. She went through an investigation process. She participated in a hearing. She testified. The university found in her favor and terminated her alleged harasser. Then her union tried to overturn that termination through arbitration. She would not have been allowed to participate in that process. The court ruled that this violated her federal rights.

The irony is sharp enough to cut: Jane’s harassment complaint became the legal mechanism to strip her fellow union members of collective bargaining protections. The same union that represents her also represents the man she accused. When the union attempted to exercise its contractual right to arbitrate his termination, the court declared that right void because it would exclude her.

The practical result is that Jane is now a precedent. Her case will be cited every time a university wants to bypass union arbitration in harassment cases. Administrators at Rutgers and other institutions now have a playbook: invoke Title IX, follow the federal grievance process, issue termination, refuse arbitration, cite Rutgers v. AFSCME Local 888.

Workers who are accused of misconduct in Title IX cases no longer have access to the arbitration process their unions negotiated for them. The contract they worked under, voted to ratify, and paid dues to enforce is now functionally unenforceable when the employer invokes federal compliance obligations.

Consider what this means in practice. A university employee is accused of harassment. The university investigates under Title IX. The employee is found responsible and terminated. The union says, “Our contract guarantees arbitration for all terminations.” The university says, “Federal law overrides your contract.” The employee has no recourse. The union contract is worthless.

Jane did not ask for this. There is no indication in the court record that she opposed union arbitration or felt her rights would be violated by it. The court simply assumed, on her behalf, that her exclusion from the arbitration process was a harm requiring federal intervention. Nobody asked Jane what she wanted. The university spoke for her. The court ruled for her. Her voice is absent.

The decision treats Jane as a legal abstraction rather than a person with agency. She becomes “the complainant,” a party with federal procedural rights that must be protected, even if protecting them means dismantling the collective power of the union that represents her.

This is how systems eat people. Jane reported harassment. She wanted it to stop. What she got was a legal precedent that benefits her employer at the expense of her coworkers.

Legal Receipts

The court’s holding rests on a straightforward reading of 34 C.F.R. § 106.45(b). That regulation governs Title IX grievance procedures at federally funded educational institutions. It states:

“For the purpose of addressing formal complaints of sexual harassment, a recipient’s grievance process must comply with the requirements of this section. Any provisions, rules or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment must apply equally to both parties.”

The court interprets “apply equally to both parties” to mean that any post-determination appeal process must allow both the accused and the accuser to participate on equal terms. Because the CNA arbitration would involve only J.M., the union, and Rutgers, and would exclude Jane entirely, the court concludes that the process does not “apply equally.” Therefore, it conflicts with federal law. Therefore, it is preempted.

The decision cites the regulation’s preamble, where the Department of Education acknowledged potential conflicts with union contracts and stated that “in the event of an actual conflict between a union contract or practice and the final rules, the Regulations have preemptive effect.”

From the opinion:

“Here, Local 888’s requested arbitration does not allow for equal participation by Jane and J.M. Rather, the CNA treats the two parties differently. Specifically, the arbitration would only involve Rutgers, J.M., and Local 888. Jane would not be a party to the arbitration. This avenue of appeal is therefore not offered equally to both the alleged victim and alleged sexual harasser, conflicting with Section 106.45(b)(8)(ii).”

The court rejects the argument that Jane could participate in the arbitration as a witness or through affidavits, noting that “Rutgers is not her functional equivalent.” The decision emphasizes that Jane would have no right to present arguments directly to the arbitrator, no ability to contest the discipline imposed on J.M., and no standing to appeal the arbitration outcome.

Justice Fasciale writes:

“Although Rutgers and Jane may share some interests, Rutgers is not her functional equivalent. To evaluate whether just cause existed for terminating J.M., the arbitrator will have to consider the alleged misconduct and Jane’s allegations. Since Jane is not a party to the arbitration, she is denied her right to present her arguments and allegations to the arbitrator, who will issue a binding determination.”

The court also dismisses the suggestion that Jane could file her own separate grievance challenging a hostile work environment if J.M.’s termination were overturned in arbitration. Two separate arbitrations would not satisfy the “equal participation” requirement, the court holds, because Jane would not be participating in J.M.’s appeal of his termination.

The decision explicitly limits its holding to the specific CNA at issue, noting that “the Regulations do not preempt every union grievance process.” The court suggests that Rutgers and Local 888 could renegotiate their contract to comply with Title IX, though it offers no guidance on what a compliant arbitration process would look like.

Societal Impact Mapping

Labor Power and Collective Bargaining

This decision functionally eliminates union arbitration protections for any worker accused under Title IX. Public sector unions in New Jersey and beyond now face a reality where negotiated grievance procedures can be nullified by invoking federal compliance obligations.

Arbitration is the cornerstone of union power in employment disputes. It is the mechanism by which workers can challenge terminations, demotions, and disciplinary actions without relying on the employer’s internal processes or expensive litigation. When a union negotiates a “just cause” standard and binding arbitration, it is negotiating the difference between at-will employment and due process.

The court’s ruling strips that protection in an entire category of cases. Any time an employer can invoke Title IX, arbitration is off the table. This creates an incentive structure where employers can use federal regulations as a union-busting tool. Allege a Title IX violation, follow the federally mandated process, issue termination, refuse arbitration, cite precedent.

The decision also creates confusion about the scope of union representation. AFSCME Local 888 represents both Jane and J.M. When Jane filed her complaint, the union had an obligation to support her. When J.M. was terminated, the union had an obligation to defend him. The court’s ruling puts unions in an impossible position: represent the complainant by abandoning the respondent, or represent the respondent by ignoring the complainant.

Institutional Control and Administrative Power

Universities and colleges now have unilateral control over employment outcomes in harassment cases. Once a Title IX investigation concludes with a termination, there is no external review. The arbitrator who would have provided that review is preempted. The only remaining avenue is litigation, which most workers cannot afford.

This consolidates power in the hands of university administrators. Title IX coordinators, investigators, and decision-makers now operate without the check of binding arbitration. Their determinations are final. If they make an error, if they misinterpret evidence, if they apply the wrong standard, there is no corrective mechanism.

The court acknowledges this, quoting the Department of Education’s statement that universities “deserve considerable deference as to their disciplinary decisions” and that “the Department will not second guess such decisions” as long as they follow the mandated process. The court then extends that deference by eliminating the one external review process that could second-guess those decisions.

Victim Rights and Weaponized Compliance

The decision claims to protect Jane by ensuring she has equal participation rights in any appeal process. But Jane is never asked whether she wants those rights. The court assumes that her exclusion from arbitration is harmful without any evidence that she views it that way.

This creates a framework where victim protection is defined by institutions rather than victims. Jane’s interests are determined by Rutgers and the court, not by Jane. Her complaint becomes a tool for institutional control, not a mechanism for personal justice.

The ruling also opens the door to weaponized Title IX complaints. If an employer wants to terminate a union activist or troublesome employee, a harassment complaint provides a path to bypass arbitration. Follow the Title IX process, issue termination, refuse arbitration, cite Rutgers v. AFSCME. The worker has no recourse.

The Cost of a Life Metric

What Now

The New Jersey Supreme Court has spoken. AFSCME Local 888 lost. J.M.’s termination stands. Jane’s complaint set a precedent that will outlive everyone involved.

Here is what you can do.

If you are a union member: Your contract may now be unenforceable in harassment cases. Demand that your union renegotiate to include complainant participation rights in arbitration, or establish a separate Title IX-compliant appeal process. Ask your union leadership how they plan to protect members accused under Title IX.

If you are a union organizer: This decision is a blueprint for union avoidance. Employers can now bypass arbitration by invoking federal compliance. Educate members about the Rutgers v. AFSCME precedent. Build contract language that explicitly addresses Title IX procedures and preserves arbitration rights to the maximum extent federal law allows.

If you work at a university: Your Title IX office just became more powerful. Title IX coordinators now operate with less oversight. If you are accused, you have fewer avenues for appeal. If you are a complainant, the process may be used in ways you did not intend. Document everything. Know your rights under both Title IX and your union contract.

Watchlist: Monitor these agencies and institutions for future cases using this precedent.

• New Jersey Public Employment Relations Commission (PERC)
• U.S. Department of Education Office for Civil Rights
• American Federation of State, County and Municipal Employees (AFSCME)
• American Federation of Teachers (AFT)
• National Education Association (NEA)
• Rutgers University Office of Employment Equity

Organize locally. University unions need to coordinate on this issue. Demand transparency in Title IX processes. Push for external review mechanisms that comply with federal law while preserving worker protections. The court said Rutgers and Local 888 “may renegotiate the CNA to bring it into compliance with Title IX.” That renegotiation is where the fight happens now.

Federal law is being used as a crowbar to pry apart union contracts. The only response is solidarity: between complainants and accused workers, between unions and victims’ advocates, between labor power and civil rights. Those groups are not natural enemies. They have been made into enemies by institutions that benefit when workers cannot defend each other.