There is a looming and unprecedented legal issue on the horizon for thousands of public colleges and universities nationwide. This issue represents the evolution and eventual collision of years of legal jurisprudence involving collective bargaining rights and the evidentiary standard of review during a Title IX sexual assault investigation.
Simply put, in light of the sweeping Dept. of Education Title IX policy changes set to become law in 2019, should labor unions have a voice in which standard of review colleges choose?
Ostensibly, there might not appear to be a close or apparent relationship between Title IX and public institution collective bargaining agreements. To be sure, Title IX involves in large part students’ gender equity and their safety from sexual harassment on a college campus. Unionized public employees, on the other hand, employed on a college campus who may become victims of sexual harassment by a fellow employee or university student enjoys the expansive protections of Title VII, state laws, college policy and the provisions of their respective collective bargaining agreements. However, if the accused is a union member, should the standard of review become an issue predetermined by collective bargaining?
The impending Title IX changes give colleges and universities the right to choose the standard of review between preponderance of the evidence and clear and convincing evidence. Yet, the question remains under the proposed Title IX changes: Is the Title IX standard of review a mandatory subject of bargaining? Is the Title IX standard of review a term and condition of employment? In California, for example, the public employment statute reads “it is the purpose of this chapter to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.” See Cal. Gov’t Code § 3500
In Illinois, an employer’s refusal to negotiate over a mandatory subject of bargaining constitutes an unfair labor practice. Vill. of Oak Lawn v. Illinois Labor Relations Bd., State Panel, 2011 IL App (1st) 103417, ¶ 14, 964 N.E.2d 1132, 1136. Similarly, in Ohio, the public employment statute states “all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative ….” See Ohio Codes 4117.08
While these matters will vary from state to state, the issue is set to become one of the most contentious concerns for colleges nationwide.