Title IX Equal-Appeal Requirement Preempts One-Sided Union Arbitration in Sexual Harassment Discipline Cases

Introduction

In In the Matter of Rutgers, the State University of New Jersey v. AFSCME Local 888 (A-46-24), the Supreme Court of New Jersey confronted a direct collision between a collectively negotiated disciplinary-appeal mechanism and federal Title IX grievance regulations. Rutgers University, a recipient of federal education funding, is subject to Title IX and its implementing regulations. After Rutgers terminated an employee (J.M.) following a Title IX sexual-harassment proceeding initiated by a coworker complainant (Jane), the union (AFSCME Local 888) sought to invoke the 2019 collective negotiation agreement (CNA) to arbitrate whether there was “just cause” for the discharge. Rutgers refused, asserting the CNA arbitration conflicted with—and was preempted by— the U.S. Department of Education’s (DOE) 2020 Title IX Regulations, especially the requirement that any additional grievance-process provisions “apply equally to both parties.”

The key issues were (1) whether federal preemption doctrine governs (as opposed to New Jersey’s scope-of-negotiations/state-preemption framework), and (2) whether Title IX’s 2020 regulatory scheme permits post-termination arbitration that includes the respondent and the union but excludes the complainant from equal procedural participation.

Summary of the Opinion

The Court (Justice Fasciale, unanimous participating Justices) reversed the Appellate Division and PERC, holding that the CNA’s Step 4 binding arbitration procedure is conflict-preempted by the 2020 Title IX Regulations. The Court reasoned that 34 C.F.R. § 106.45(b) requires that any grievance-process provisions beyond the regulatory minima “must apply equally to both parties,” and that 34 C.F.R. § 106.45(b)(8) imposes symmetrical procedural protections in appeals. Because the CNA arbitration procedure is an appeal-like mechanism available only to the disciplined employee and the union—while excluding the complainant as a party—it fails the equal-application mandate and therefore conflicts with federal law. The Court emphasized its holding was limited to this particular CNA, which can be renegotiated to comply with Title IX.

Analysis

Precedents Cited

The Court’s analysis is principally structured around federal Supremacy Clause and preemption doctrine. The opinion relies on the following authorities (cited exactly as in the Opinion text) to situate the standard and to reject deference to state-agency expertise on a federal constitutional question:

  • Martin v. United States (605 U.S. 395 (2025)) — Used for the Supremacy Clause proposition that when federal and state law conflict, “the state law must yield,” framing preemption as a rule of decision, not a policy choice.
  • Hager v. M&K Constr. (246 N.J. 1 (2021)) — Cited to confirm that New Jersey courts apply federal preemption doctrine when federal law is the asserted preemptive source.
  • In re Ridgefield Park Bd. of Educ. (244 N.J. 1 (2020)) — Cited for the standard of review: de novo review applies when an agency decision turns on statutory interpretation or a strictly legal issue. Also contrasted because it dealt with state-law preemption of CNA provisions, not federal-law preemption.
  • City of Jersey City v. Jersey City Police Officers Benevolent Ass'n (154 N.J. 555 (1998)) — Referenced for the general principle of limited appellate review of agency action within expertise, then distinguished because federal preemption is a legal issue reviewed de novo.
  • Saccone v. Bd. of Trs., PFRS (219 N.J. 369 (2014)) — Supports de novo review where a purely legal issue is presented.
  • In re Alleged Failure of Altice USA, Inc. (253 N.J. 406 (2023)) — Reinforces that preemption determinations are reviewed de novo.
  • In re Reglan Litig. (226 N.J 315 (2016)) — Another New Jersey authority applying de novo review to federal preemption.
  • Gonzales v. Raich (545 U.S. 1 (2005)) — Cited for the maxim that federal law prevails in a federal-state conflict.
  • Maryland v. Louisiana (451 U.S. 725 (1981)) and McCulloch v. Maryland (17 U.S. (4 Wheat) 316 (1819)) — Used for the foundational rule that conflicting state law is “without effect.”
  • Gade v. Nat'l Solid Wastes Mgmt. Ass'n (505 U.S. 88 (1992)) — Cited for the proposition that Congress’s preemptive intent may be express or implied.
  • Brown v. Hotel & Rest. Emps. & Bartenders Int'l Union Loc. 54 (468 U.S. 491 (1984)) — Supplies definitions of express preemption and conflict preemption; later used with Hines for obstacle preemption.
  • Altria Grp., Inc. v. Good (555 U.S. 70 (2008)), Medtronic, Inc. v. Lohr (518 U.S. 470 (1996)), and Cipollone v. Liggett Grp., Inc. (505 U.S. 504 (1992)) — Used to explain that an express preemption clause does not end the inquiry; courts must identify the scope of what is displaced.
  • Fla. Lime & Avocado Growers, Inc. v. Paul (373 U.S. 132 (1963)) — Provides the “physical impossibility” formulation of conflict preemption.
  • Hines v. Davidowitz (312 U.S. 52 (1941)) — The classic “obstacle” preemption test: whether state law stands as an obstacle to federal purposes.
  • Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta (458 U.S. 141 (1982)) — Central for two propositions the Court uses heavily: (1) federal regulations have “no less pre-emptive effect than federal statutes,” and (2) agency intent to preempt can be discerned from regulatory text and supporting materials.
  • Rice v. Santa Fe Elevator Corp. (331 U.S. 218 (1947)) — Establishes the presumption against preemption in areas of historic state police power, which can be overcome by a “clear and manifest” conflict.
  • Transource Pa., LLC v. Defrank (156 F.4th 351 (3d Cir. 2025)) and Farina v. Nokia, Inc. (625 F.3d 97 (3d Cir. 2010)) — Cited for the notion that the presumption against preemption is overcome where conflict is “clear and manifest.”
  • Glukowsky v. Equity One, Inc. (180 N.J. 49 (2004)) — New Jersey precedent confirming that federal agency regulations are treated like federal statutes for preemption purposes.
  • Hillsborough County v. Automated Med. Labs., Inc. (471 U.S. 707 (1985)) — Used to justify relying on regulatory preambles to discern preemptive intent.
  • Geier v. Am. Honda Motor Co. (529 U.S. 861 (2000)) — Supports that a formal, specific agency statement identifying conflict is not required if conflict exists in fact.
  • N.J. Tpk. Auth. v. N.J. Tpk. Supervisors Ass'n (143 N.J. 185 (1996)) — Cited for the EERA proposition that disciplinary arbitration is permissible only if it does not replace or conflict with another statutory remedy.
  • Ridgefield Park v. N.Y. Susquehanna & W. Ry. Corp. (163 N.J. 446 (2000)) — Cited in connection with federalism and the presumption against preemption.
  • Tennessee v. Cardona (762 F. Supp. 3d 615 (E.D. Ky. 2025)) — Not a preemption precedent, but critical context: it explains why the Court analyzes the 2020 Regulations (the 2024 amendments were vacated).

Collectively, these cases enable the Court to (1) select federal preemption doctrine as the governing analytic framework, (2) treat DOE regulations as having statutory-grade preemptive force, and (3) apply obstacle/conflict preemption when a state-law mechanism undermines the federal design for parity in Title IX grievance procedures.

Legal Reasoning

  1. Choice of law and standard of review. The Court first rejected the Appellate Division’s and PERC’s reliance on New Jersey’s state preemption and scope-of-negotiations doctrine. Because the asserted preemptive source is federal (Title IX and DOE regulations), the Supremacy Clause requires applying federal preemption principles. And because preemption is a “strictly legal issue,” the Court reviewed the agency and appellate rulings de novo, refusing to defer to PERC’s asserted expertise on a constitutional hierarchy question.
  2. The controlling federal command: equal application to “both parties.” The interpretive fulcrum is 34 C.F.R. § 106.45(b), which does two things at once:
    • It requires recipients to implement a grievance process for formal Title IX complaints meeting detailed federal minimum requirements.
    • It imposes a parity rule: any additional “provisions, rules or practices” adopted as part of the grievance process “must apply equally to both parties.”
    The Court then connects that parity rule to the appeals requirements in 34 C.F.R. § 106.45(b)(8), which repeatedly mandates symmetric notice and participation opportunities for both complainant and respondent when any appeal is undertaken.
  3. Characterizing CNA arbitration as an “appeal” within the Title IX grievance ecosystem. The Court rejected the defense framing that Title IX governs only the “pre-discipline” phase, leaving post-termination arbitration untouched. In the Court’s reading, the Regulations cover not merely responsibility determinations but also sanctions/remedies and “all appeals,” meaning a recipient cannot route the sanction decision into a separate, materially asymmetrical proceeding without violating the “apply equally” constraint.
  4. Identifying the conflict: complainant exclusion in Step 4 arbitration. Under Article 4, only the union may advance to binding arbitration after internal steps, and the arbitration is between Rutgers and the union/employee. The complainant is not a party and has no procedural rights comparable to those held by the respondent—no guaranteed notice of the appeal, no equal right to submit argument, and no right to participate as a party in a binding adjudication that could undo sanctions imposed after a Title IX-compliant hearing. The Court held that this violates the equal-application mandate of § 106.45(b) and the equal-procedure requirements of § 106.45(b)(8).
  5. Rejection of proposed “work-arounds.” The Appellate Division suggested Rutgers could protect Jane’s interests by presenting evidence or allowing her to appear as a witness/submit an affidavit, and that the union could separately grieve on Jane’s behalf if she was dissatisfied. The Court found both inadequate:
    • Rutgers is not “her functional equivalent”; the Regulations require equal procedural rights for the parties, not substituted representation by the institution.
    • Separate grievances do not cure the asymmetry in J.M.’s appeal route; parity is required in the appeal mechanism itself.
  6. Express reinforcement of conflict preemption via regulation and preamble. The Court relied on 34 C.F.R. § 106.6(h) (“Preemptive effect”) and the preamble statement at 85 Fed. Reg. 30298 that the final rules have “preemptive effect” in the event of an “actual conflict” with a union contract or practice. That material supported a finding of clear federal intent to displace conflicting state-law mechanisms.
  7. Scope limitation. The Court repeatedly cabined the holding: it did not declare all labor arbitration incompatible with Title IX. It held only that this CNA’s arbitration procedure, as structured, conflicts because it excludes the complainant from equal participation. The Court pointed to renegotiation as the path to compliance.

Impact

  • Collective bargaining in higher education (and other Title IX recipients). Public employers that are Title IX recipients must now scrutinize disciplinary-arbitration clauses when the discipline arises from a Title IX sexual-harassment formal complaint. If a union procedure operates as an additional appeal that is not equally available to (and participatory for) complainants and respondents, it is vulnerable to conflict preemption.
  • Arbitration design pressure: parity by structure, not by proxy. The Court’s rejection of “Rutgers can represent the complainant’s interests” signals that institutions cannot cure an unequal-party architecture with informal participation. A future compliant model (the Court implies) would have to redesign post-discipline review so that the complainant is granted equal procedural rights if the mechanism is part of the “grievance process” for the Title IX complaint.
  • Narrow but meaningful limitation on EERA-driven arbitration mandates. Although New Jersey’s EERA generally compels use of negotiated grievance procedures, the Court reaffirmed that such procedures are compulsory only unless they are “inconsistent with any other statutory remedy.” Here, the “other” controlling regime was federal. The decision thus places a federal ceiling on how far state labor law can require post-discipline arbitration when it conflicts with Title IX parity requirements.
  • Litigation and administrative practice. The decision is likely to shift disputes from “scope of negotiations” arguments to federal preemption fact-pattern analysis: whether the post-disciplinary mechanism is sufficiently integrated into the Title IX grievance process and whether it truly provides equal rights to both complainant and respondent.

Complex Concepts Simplified

Title IX recipient
An institution that receives federal education funding. Receipt of funds triggers mandatory compliance with Title IX and DOE regulations.
Supremacy Clause
A U.S. Constitution rule that federal law outranks conflicting state law. If they conflict, the state rule cannot be enforced.
Preemption
The doctrine explaining when federal law displaces state law. The Court focused on conflict (including “obstacle”) preemption: state procedures cannot operate if they contradict federal requirements or undermine federal objectives.
Conflict vs. obstacle preemption
“Conflict” can mean you cannot comply with both rules at once, or that the state rule blocks (“stands as an obstacle to”) what the federal rule aims to accomplish.
34 C.F.R. § 106.45(b) “apply equally to both parties”
If a school adds any extra procedures to its Title IX grievance process beyond the minimum federal requirements, those extras must be available and administered in the same way to both complainant and respondent. The Court treated the CNA arbitration as such an extra procedure.
Why “party status” matters
A “party” has defined procedural rights: notice, the right to submit argument, and participation protections. Being only a witness is not the same as having equal procedural standing in an appeal that can overturn sanctions.

Conclusion

The Supreme Court of New Jersey held that a union-negotiated, post-termination “just cause” arbitration is preempted by the 2020 Title IX Regulations when it functions as an additional grievance/appeal procedure that is not equally available to and participatory for both the complainant and respondent. By anchoring the analysis in 34 C.F.R. § 106.45(b) and § 106.45(b)(8), and reinforcing intent through 34 C.F.R. § 106.6(h) and the regulatory preamble, the Court established a clear rule: Title IX parity requirements set enforceable limits on CNA grievance mechanisms in Title IX sexual-harassment discipline cases. The decision’s practical message is forward-looking—recipient employers and unions may bargain for review processes, but those processes must be structured to provide equal procedural rights to both parties in the Title IX grievance system.