In In the Matter of Rutgers v. AFSCME Local 888 (A-46-24/090230) (Decided January 29, 2026), the Supreme Court of New Jersey held that the grievance procedure in a collective negotiation agreement (CNA) between Rutgers University and Local Union No. 888 is preempted by the federal Title IX Regulations promulgated in 2020 by the U.S. Department of Education (DOE).
Facts of In the Matter of Rutgers v. AFSCME Local 888
As a recipient of federal education funding, Rutgers is subject to Title IX. In May 2020, the DOE promulgated its Title IX Regulations, which address sexual harassment as a form of sex discrimination. Later that year, Rutgers adopted a Title IX Policy that included a grievance procedure compliant with the Regulations. In February 2022, Rutgers initiated a grievance procedure pursuant to its Title IX Policy after a custodian, “Jane,” filed a complaint against her co-worker, J.M.
Following the investigation and hearing, the Title IX decision-makers determined that J.M. violated two provisions of the Title IX Policy and that just cause existed for terminating his employment, a determination upheld on appeal. Local 888 filed a grievance pursuant to its 2019 CNA with Rutgers, requesting a meeting to determine if J.M. was terminated for just cause.
Rutgers denied the meeting request on the ground that the Title IX Regulations preempt the CNA’s grievance procedure. Local 888 submitted a request for arbitration to the Public Employment Relations Commission (PERC), asserting Rutgers violated Article 4 of the CNA. Rutgers asked PERC to restrain arbitration because the Regulations preempted a review of the disciplinary sanctions under the CNA. PERC denied Rutgers’ request and, applying state preemption law, held that the Title IX Regulations did not preempt the arbitration.
Rutgers appealed, and the Appellate Division affirmed. It determined that no explicit regulation preempted Rutgers’ Title IX Policy relating to sanctions, noting that its “reading [of] the Title IX Regulations together fail[ed] to demonstrate a preemptive intention or conflict precluding Local 888’s independent grievance procedure under the CNA.”
The appeals court further found that the grievance arbitration would not negate the Title IX grievance process because the grievance arbitration is “limited to challenging J.M.’s discharge.” The appellate court acknowledged that Jane would not be a party to arbitration, but nonetheless determined that she would not be denied an opportunity to be considered in the arbitration because Rutgers could ensure that her “interests are weighed and introduce relevant evidence for the arbitrator’s consideration.”
NJ Supreme Court’s Decision in In the Matter of Rutgers v. AFSCME Local 888
The New Jersey Supreme Court unanimously reversed. “We conclude that the CNA’s grievance procedure conflicts with the Title IX Regulations because 34 C.F.R. § 106.45(b) mandates that any grievance procedures beyond those specified in that section ‘must apply equally to both’ the alleged victim and the alleged harasser, but the CNA’s arbitration process excludes the alleged victim,” Justice Douglas Fasciale wrote on behalf of the Court. “Under federal preemption principles, we hold that the Title IX Regulations thus preempt the CNA’s arbitration process.”
In reaching its decision, the New Jersey Supreme Court first addressed the 2020 Title IX Regulations, specifically Section 106.45(b)(8), which governs grievance appeals. Under that section, “[a] recipient must offer both parties an appeal from a determination regarding responsibility” on several specified grounds. The recipient may offer an appeal on additional bases and any additional appeal must apply “equally to both parties.”
The Court next reviewed the CNA’s four-step grievance procedure. As Justice Fasciale explained, in the first three steps, the employee, a Rutgers representative, and a Union representative meet and discuss the grievance. The Rutgers representative then issues a written answer. If, after Steps 1 through 3, the Union is “not satisfied with the written decisions of the Rutgers representative,” the Union may proceed to Step 4 and “submit the grievance to binding arbitration.”
The New Jersey Supreme Court ultimately determined that the CNA conflicts with federal regulations. “The Regulations demand equal treatment of Jane and J.M. throughout the grievance proceedings,” Justice Fasciale wrote. “The CNA’s arbitration process fails to meet that mandate.”
According to the Court, the grievance process prescribed under the Title IX Regulations is not just a pre-disciplinary process; rather, the Regulations cover both pre-disciplinary and post-disciplinary matters. When a party appeals from any determination, the Regulations require that both parties have equal procedural rights in the ensuing appeal, which is not the case under the CNA.
Finally, the New Jersey Supreme Court noted that the Regulations do not preempt every union grievance process. “[O]ur holding is limited to this particular CNA. Rutgers and Local 888 may renegotiate the CNA to bring it into compliance with Title IX,” Justice Fasciale wrote.
