A recent decision from the New Jersey Supreme Court highlights a significant compliance tension many colleges and universities may not have fully appreciated: the intersection of Title IX procedural requirements and collective bargaining grievance procedures embedded in labor agreements.

At issue was whether a public university could send a Title IX-related termination to binding arbitration under a union contract, even when that arbitration process did not provide participation rights to the complainant.

In Rutgers v. AFSCME Local 888, the Court held that it could not. This is an important compliance principle that extends beyond New Jersey and beyond public institutions.

The Core Issue

After a custodial employee at Rutgers was terminated following a Title IX investigation, the employee’s union sought to grieve the termination under its collective negotiation agreement. The contract required binding arbitration, but that process allowed only the disciplined employee to participate. The complainant had no right to notice, participation, presentation of evidence, or appeal in that arbitration.

Rutgers argued that allowing arbitration to proceed under these terms would conflict with Title IX’s federal requirements for equitable grievance procedures for both parties. The New Jersey Supreme Court agreed, holding that Title IX preempted the contractual grievance process where it undermined federally required procedural parity.

Why this Matters

Title IX requires institutions to respond to sex discrimination in a manner that is not deliberately indifferent. Under federal regulations, institutions must provide fair and equitable procedures for both complainants and respondents when resolving formal complaints of sexual harassment.

For public colleges and universities, particularly those with unionized workforces, the message is clear:

• Federal Title IX requirements override conflicting state law or contractual grievance provisions.
• Institutions must ensure that post-disciplinary review mechanisms do not deprive complainants of rights guaranteed under Title IX.
• Allowing unilateral arbitration of Title IX outcomes creates a real risk of inconsistent findings and compliance exposure.

But What About Private Institutions?

This ruling technically applies to public institutions, where federal preemption over state labor law was directly at issue.

Private schools are not governed by the same state public-sector labor frameworks addressed in the case. However — and this is important — private institutions should not dismiss this decision.

Why?

Because the underlying compliance principle applies broadly:

If your institution offers a grievance, appeal, or arbitration process that revisits the outcome of a Title IX matter, you must ensure that the process does not undermine Title IX’s requirements for equitable treatment of both parties.

Even where federal preemption is not at issue, private institutions face:

• OCR scrutiny regarding procedural fairness
• Litigation risk under Title IX
• Breach of contract claims if institutional policies promise parity
• Reputational exposure if processes appear one-sided

In short, while the legal mechanism may differ, the compliance risk remains.

Action Steps for All Institutions

Regardless of public or private status, now is a good time to:

• Review collective bargaining agreements and employment contracts for grievance language that could intersect with Title IX matters.
• Map your post-disciplinary review pathways. Who has standing? Who receives notice? Who can participate?
• Confirm that any appeal or arbitration mechanism does not create unequal rights between complainants and respondents.
• Align policy language across HR, labor relations, and Title IX offices to avoid internal conflicts.

The Bigger Picture

This case is a reminder that Title IX compliance does not live in isolation. It intersects with employment law, labor agreements, internal grievance systems, and governance structures.

For public institutions, federal preemption is now clearly in play.

For private institutions, the lesson is more subtle but equally important: internal processes must reinforce — not erode — Title IX’s commitment to equitable treatment.

At ICS, we regularly see institutions unintentionally create procedural misalignment across departments. The risk is rarely intentional, but the consequences can be significant.

If you have unionized employees, layered grievance processes, or overlapping review systems, this decision is worth a careful look, even if it does not technically bind your institution.

Proactive alignment is far less costly than reactive defense.