Beyond Title IX: Unions and the Fight for Equality in Higher Education

In February of this year, three graduate students (myself among them) filed a lawsuit against Harvard University that made national headlines. The lawsuit claimed that the university had engaged in a pattern of deliberate indifference to the harms perpetrated against us by a powerful tenured professor. It alleged that not only did the university’s administrators fail to protect students from harassment and retaliation, but that the very process of pursuing a Title IX investigation through the university’s internal processes created significant additional harm for students.

For all its self-proclaimed “equity” initiatives, the neoliberal university is deeply invested in hierarchy. From reimbursement models of funding to internal investigatory processes and dispute resolution, bureaucratic structures that reinforce entrenched decision-making hierarchies are central to the university’s reproduction of inequality. The difference between what the university claims and what it does is particularly stark in the bureaucratic practices that determine the institution’s treatment of survivors of sex- and gender-based harassment and discrimination—whose victims are subject to additional forms of social and economic marginalization, making them especially vulnerable.

Going through a formal Title IX investigation is an arduous and often harmful process. Many students are re-traumatized by investigators and ostracized in their workplaces for simply trying to seek justice. Those accused of harassment can also retaliate using the process itself. For example, the accused can file their own spurious claims to bury a survivor in paperwork, or they can introduce witnesses whom a survivor might otherwise rely on in an academic workplace (such as faculty in the same department).

Collectively bargained grievance processes can offer democratic recourse to discrimination and harassment, making the labor movement a key player in the process of transforming higher education.

The three of us who filed the suit—myself, Margaret Czerwienski, and Lilia Kilburn—worked hard to analyze the problems we faced as we went through Harvard’s processes. While we have been fighting for a just outcome in our own case, we’ve also been organizing with our labor union, the Harvard Graduate Students Union, UAW 5118, around the broader issue of harassment and discrimination. At universities across the country, these issues have become central to student labor organizing, bringing together survivors to rethink what recourse can look like at universities. Collectively bargained grievance processes can offer democratic recourse to discrimination and harassment, making the labor movement a key player in the process of transforming higher education.

 

Contextualizing Title IX

Studies of sexual assault and misconduct in higher education have found such behavior to be significant and pervasive. These abuses can affect all who work and learn in universities, though they disproportionately affect women and gender non-conforming people. Within that group, those who experience other forms of marginalization along axes such as race, caste, immigration status, or ability are more at risk.

Passed as part of the Education Amendments of 1972, Title IX was meant to address sex-based harassment and discrimination by ensuring that every student had equal access to the same education. In 2014, in a Dear Colleague letter issued by the Departments of Justice and Education, the Obama administration handed down detailed guidelines to educational institutions regarding their investigatory and remedial obligations under Title IX. This guidance put universities on notice to become compliant with federal law, create new Title IX offices, and provide training seminars for students, faculty, and staff regarding their rights and obligations under the law.

Opinions on a legal rights-based approach to addressing gender and sex discrimination vary, but experts tend to agree that the way higher education institutions implement Title IX harms survivors much more often than it realizes justice, healing, repair, or increased and equitable access to education.

 

How Universities Undermine Discrimination Protections for Students

The most familiar tool in the union toolbox is “third-party arbitration.” Labor unions have contractually protected grievance processes that they can use when an employer violates a contract provision. If the union files a grievance and the employer fails to reach a satisfactory resolution, the case goes to a third-party arbitrator. The arbitrator assesses the evidence and, if the employer is found responsible for violating the contract, makes a legally binding decision regarding the actions the employer must take to make things right.

In contracts with student worker unions, universities have agreed to this grievance and arbitration procedure for a number of issues, including changes to wages, workload, and workplace safety. For example, if broken lab equipment puts student workers at risk of physical harm, and a department or administrators refuse to fix it or provide a solution that keeps workers safe, the union can take the case to an arbitrator, who will enforce the contract.

Yet, many universities have refused contract provisions that would subject protections against sex- and identity-based discrimination and harassment to this same enforcement mechanism, despite the fact that such issues are central to workplace safety. There is strong historical precedent for discrimination protections in other industries, protections often denied to graduate students. Sex- and identity-based discrimination protections are enshrined in the contracts of other Harvard unions (including Local 26 UNITE HERE and SEIU 32BJ), even as the university refuses such protections for graduate student workers. As Local 26 member Ed Childs informed HGSU organizers before their 2020 strike, his union contract has had homophobia protections since the 1980s.

The university’s public reasoning is that allowing student worker unions to include sex- and gender-based discrimination protections in a labor contract would violate federal Title IX law. They argue that allowing unionized student workers access to a different investigatory process than that available to non-unionized students would create inequality.

But this defense relies on a false equivalence between Title IX and a union’s grievance process. In the latter, the union and university enter into proceedings, not an individual complainant and respondent, and arbitrators do not evaluate whether or not Title IX law was violated by a person’s actions. They evaluate whether or not discrimination and harassment occurred according to their definition in the relevant contract article and, if so, whether or not the university took adequate measures to address such behavior and offer restitution to those affected. In this sense, arbitration of a discrimination or harassment claim is not a substitute for the recourse offered by a Title IX investigation, and it does not preclude unionized workers from using the normal internal Title IX investigation procedure. Instead, arbitration insists that it is the university’s responsibility to maintain a safe work environment.

 

When Power Protects Itself, Arbitration Is Critical

What is actually at stake when universities refuse to allow arbitration is liability. Higher education institutions seek to suppress claims of sex- and gender-based harassment, obscure the true rates of such harms, and resist ceding power for remedy or restitution outside of upper-level administration. Doing so would raise the question of institutional responsibility—and liability—for a culture that permits rampant abuse.

#Metoo scholars have written at length about how abuse is often turned into a “he said-she said” dispute between two individuals. Such processes obscure the role of structures in enabling abuse and obscure the nature of abuse as a systemic pattern. Fundamentally, the fight for contractual protections in relation to sex and gender discrimination—and all the organizing that surrounds this issue—resists this individualizing approach. Arbitration is one way to pressure a university to reconsider existing workplace practices and norms—and, ultimately, to transform institutions. It incentivizes the university to invest in prevention because repeated arbitration decisions are both reputationally and financially costly.

A second benefit of arbitration is that unions can bring complaints on behalf of multiple student workers at once and can link multiple types of harm together. At Harvard, for example, no single complainant in a Title IX investigation can do this; each complaint is assessed on its own and appraised only in relation to sex- and gender-related policies. Whether the university chooses to analyze it alongside other individual cases or policies is out of the complainant’s control.

In contrast, when the union brings a case, it can connect cases of multiple complainants and bring them before an arbitrator as a pattern. The union can also bring together claims of harassment and retaliation, which are often connected. It can also connect claims of sex and gender discrimination with other claims—such as racist discrimination. If a professor sexually harasses some students, retaliates against other students for speaking about him, and retaliates further through the Title IX investigation itself without consequences from the university, the union can collect evidence and testimony from all affected and present a pattern for the arbitrator to assess.

It is true that arbitration cannot sanction the accused. For example, a tenured professor cannot be removed from their position as a direct result of union arbitration. Yet, some survivors may not want to face their abusers in a juridical process, and arbitration is one way to pursue remedies without having to do so. Some survivors may not be invested in sanctioning their abusers, particularly if wrongdoing has been acknowledged by an arbitrator—they may simply want restitution.

Third-party arbitration grounded in a contract makes remedies such as money, time off, and changes to the workplace environment legally binding—something a university’s internal processes cannot do. That is, it removes the possibility of non-punitive remedies from the university’s discretion and its internal liability calculations.

 

Collective Bargaining to Address How Title IX Works

The existence of arbitration does not, however, make Title IX investigations for student workers irrelevant. While activists have argued for major changes to Title IX, they have also pointed out the limits of a legal approach. Yet the reality remains that hundreds of student workers must go through internal investigation processes for now.

There are several reasons for this. First, Title IX investigations have a specific function: to evaluate a complainant’s claims in light of university policies rooted in Title IX law and determine if the respondent is responsible using a preponderance standard of evidence. From there, the university makes decisions regarding sanctions and discipline. Some survivors want an investigation and sanctions of the person who has harmed them, such as restrictions on teaching courses or coming to campus or a suspension.

Second, even with a strong grievance procedure, the university’s federal legal obligations empower the institution to conduct an investigation even if a survivor chooses not to come forward. If a student worker goes through the grievance process to bring forward a complaint regarding sex or gender discrimination, the university is obliged under Title IX to conduct an investigation.

Lastly, in many graduate student workplaces, individual workers’ access to contract protections fluctuates over time. At Harvard, while students in labs are paid a wage from their first year onward, students in the humanities are usually on non-wage stipends until they start teaching in their third year. This means that a student might be covered by the union contract’s protections some years of their program and not others, even as they remain a union member. To address the needs of all student workers, organizers at unions like HGSU have had to figure out ways to flex the strength of collective bargaining and organizing to intervene into the university’s Title IX process. This requires thinking beyond arbitration.

 

Leveling the Economic Playing Field

Collective bargaining can enable unions to have democratic power in internal university processes. Both survivors and labor organizers recognize that while the Title IX process is difficult for all survivors, it is made much worse by wealth inequality. Bargaining can address some of the effects of wealth inequality on outcomes for survivors who choose to, or must, go through an internal university process such as Title IX. Two wins in HGSU’s recent contract stand out on this count.

By affording access to legal counsel, wealth also determines who can defend themselves against a specious defamation lawsuit or counter-case from their abuser—a risk survivors have experienced when they come forward against a powerful professor or even a wealthy, well-connected classmate.

The first is the institution of a legal fund for student workers, which can be used to pay for legal counsel related to workplace conditions. Researchers have documented the byzantine and extremely difficult rules and processes of internal Title IX investigations, as well as the lack of support available for complainants. At Harvard, investigators are “neutrals” who are not permitted to interpret the school’s policies for participants in an investigation. Wealth determines who can afford the legal counsel that has become virtually necessary to engage in a university Title IX process.

By affording access to legal counsel, wealth also determines who can defend themselves against a specious defamation lawsuit or counter-case from their abuser—a risk survivors have experienced when they come forward against a powerful professor or even a wealthy, well-connected classmate. Lawyers can also advocate for student workers when an investigation process is being poorly conducted and set precedents. For example, after a survivor expressed that they were becoming suicidal as a result of re-traumatization during the investigation process, their lawyer stopped the interview and emphasized the importance of a protocol for responding when a complainant or participant is experiencing suicidal ideation.

Second, wealth also determines who can access and afford mental health resources and time off to heal before returning to work. Universities are not only reluctant to discipline powerful abusers, but also routinely fail to even offer non-punitive measures to survivors—measures that would simply allow survivors to safely complete their work or education. Such measures can include no-contact orders, relocation to a new workplace, transferring advisors, increased funding or time to complete a degree, reimbursements for mental health care, and so on. These supportive measures are written into the law—yet there is no mechanism at the university for student workers to ensure they receive them.

Having handled multiple cases in which supportive measures made a difference to survivors, HGSU organizers fought for the contractual right to use the grievance procedure and third-party arbitration to address situations in which the university fails to provide supportive measures, incentivizing administrators to offer such support—or else face the union’s grievance process. Rights which once required lawsuits to access are now grievable, and therefore enforceable, through a local union contract.

 

The Contract is the Floor

It is not enough to write protections into a contract or organize for policy change. Building out a team that can handle cases and directly support survivors is essential. At HGSU, Feminist Working Group organizers have worked for three years to train a group of grievance officers to do exactly that. These officers practice trauma-informed engagement, know Harvard’s byzantine policies, assist survivors as they draft statements and collect evidence, and share otherwise hard-to-find information about navigating interactions with the Harvard personnel who manage student services.

These trained case handlers help to build trust after the harms of both sexual harassment and the institutional betrayal many survivors experience due to both the university’s inaction and burdensome investigatory processes. Over time, the union has become a base from which both student workers and others at Harvard can seek help. Survivors report feeling capable of making decisions about how they want to pursue justice, knowing they are not alone. In turn, the centering of survivor-organizers directly informs HGSU’s strategies of policy and contract change.

Grievance handling as a practice of worker assistance, organizing, and community building is one way that unions can go beyond the written contract and its formal implementation. Another way is to leverage organizing power to extend benefits and protections beyond those covered by the contract.

At Harvard, organizers have started a new project to expand the gains won in the contract to non-union members—including students, faculty, and staff. In spring of 2022, a “Real Recourse Coalition” of undergraduates, graduate students, staff, and professors began developing teach-ins and strategies to change Harvard’s internal harassment and discrimination procedures, making the internal processes fairer for everyone on campus.

The first issue that organizers have identified is that internal investigators who report to the provost and are subject to Harvard’s liability calculations most often conduct Title IX investigations, a clear conflict of interest. Appeals panels are regularly made up of administrators and professors. The Real Recourse Coalition demands independent, extra-institutional investigators and appeals panels in all harassment and discrimination processes.

Second, those without funding—whether professors, students, or staff, unionized or non-unionized—cannot hire legal counsel to assist them in an internal process. The Real Recourse Coalition demands free legal counsel for everyone engaged in a complaint (whether as complainant or respondent). Harvard Law School already offers such funding to law students for specific Title IX cases and cross-examination. HGSU workers have access to a legal fund for this purpose as well. Coalition organizers argue that at the world’s richest university, this access should be available to everyone.

Attempts by the university to address sex and gender discrimination have resulted in bureaucratic systems that isolate survivors and keep power in the hands of upper-level administrators and individuals wealthy and secure enough to afford time and counsel to navigate esoteric processes. A union approach to the question of harassment and discrimination flips the script: it involves enshrining protections for workers in a legally enforceable contract (democratizing power over recourse), creating structures to organize with and materially assist survivors as they decide how to address their own experiences, implementing processes to identify patterns and structures of harm (instead of atomizing each instance of abuse as an interpersonal dispute), and emphasizing employers’ obligation to create a safe workplace and healthy learning environment.