In recent years, colleges and universities have become a central hub for labor organizing. University staff, graduate workers, and contingent faculty have won significant labor campaigns, as have tenured faculty at public universities. And faculty at some private universities have revived and super-charged organizing within non-union chapters of the American Association of University Professors (AAUP). Yet despite this organizing energy, tenured faculty at private universities have generally not unionized. Why is this?
The conventional answer is that the Supreme Court said they can’t. In 1980, the Court held in a 5-4 decision that tenured faculty at Yeshiva University exercise such substantial authority over university operations that they are more like managers than employees. Thus, decided the Court, these faculty are exempt from coverage under the National Labor Relations Act (NLRA). The Yeshiva decision largely ended union organizing among ladder faculty at private institutions. While courts and the NLRB have since agreed that graduate workers and contingent faculty are “employees” eligible to unionize under the NLRA, they have done so in part by contrasting the limited authority such workers exercise with that of ladder faculty.
As I argue in this brief post, however, the conventional answer is wrong, for two independent reasons. First, even if ladder faculty at some private institutions were properly considered managers in the 1970s, profound changes in the structure and operation of universities over the past fifty years invalidate this conclusion. Given the realities of faculty governance today, ladder faculty at many private universities are properly classified as covered employees eligible to unionize under the NLRA, not exempt managers. Second, even if ladder faculty at private institutions were still appropriately classified as excluded managerial employees in 2025, nothing in the NLRA prevents states from granting collective bargaining rights to excluded faculty—and, in fact, some existing state laws already do.
Faculty Authority, Then and Now
In October 1974, faculty at ten of the thirteen units of Yeshiva University asked the NLRB to certify their union as their collective bargaining representative. After five months of evidentiary hearings, the NLRB granted the union’s petition, conducted an election, and certified the union. The University then challenged these rulings and prevailed at the Second Circuit. The Supreme Court took up the case in October 1979.
According to the notes of Justice Harry Blackmun, the 5-4 outcome was even closer. In the justices’ private conference shortly after oral argument, Justice Potter Stewart was on the fence, sharing that his “instinct” was to side with Yeshiva but that he would not dissent if the Court ruled for the union. The most junior member, Justice John Paul Stevens, spoke last. With the count then 4-4, his vote would decide the case. Stevens confessed that he had initially favored the NLRB’s position, but that Marvin Frankel, the former federal judge and prominent human rights advocate who argued the case for Yeshiva, “changed my mind.”
In Justice Lewis Powell’s majority opinion, he explained that whether faculty were “employees” under the NLRA or exempt managers was “a mixed one of fact and law.” Faculty are managerial when they exercise “effective recommendation or control” over central employer policies, such as when a university “depends on the [faculty’s] professional judgment … to formulate and apply crucial policies constrained only by necessarily general institutional goals.”
In reaching this conclusion, Justice Powell reviewed “the voluminous record” and emphasized the Second Circuit’s finding that Yeshiva’s faculty exercised “extensive control” over “academic and personnel decisions.” The budget requests of senior faculty had never been rejected. The “central administration” routinely implemented the “overwhelming majority” of faculty recommendations. Professors, moreover, served on councils and committees that decided matters of educational policy and, in some cases, determined the “admission, expulsion, and graduation of individual students.” Summing up their broad authority, which “in any other context unquestionably would be managerial,” Powell wrote:
Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. When one considers the function of a university, it is difficult to imagine decisions more managerial than these.
The Yeshiva decision was highly fact-bound, based on close scrutiny of the administrative record as it stood in 1975, when the evidentiary hearings concluded. The Court was cognizant of this, emphasizing in a footnote that “factors not present here” could alter its conclusion. Other schools, it noted, may have faculty that are “entirely or predominantly nonmanagerial,” and whether faculty could be “included in a bargaining unit” depended on “how a faculty is structured and operates.” These caveats confirm, as subsequent rulings have found, that many contingent faculty are appropriately included in bargaining units. But they also establish, even under the rule of Yeshiva, as applied and elaborated by the NLRB and courts, that on different facts, tenured and tenure-track faculty at private universities can be covered employees.
While the legal framework of Yeshiva has endured, much about university life has changed since 1975. At many schools today, what Yeshiva termed “central administration” has expanded dramatically. Numerous administrative staff exercise decisive influence over tuition, budgeting, admissions, hiring, firing, curricula, and other aspects of university operations—influence that has come at the expense of ladder faculty.
Recent “agreements” between some universities and the Trump Administration calling for structural changes in university operations, which appear to have been negotiated and approved without meaningful faculty participation, are another manifestation of this reality. The point here is not to ask whether the emergence of the corporatist university or the increase in university administrators is justified or salutary; rather, it is to observe that a straight-forward application of the Yeshiva framework would hold that ladder faculty at many private universities today are not “managerial” employees. They are covered employees under the NLRA.
Even in 1979, some on the Court already perceived this shift: Justice William Brennan, writing for himself and the three other Yeshiva dissenters, was unpersuaded by the majority’s references to medieval notions of the university as a community of scholars. Rather, he noted, “Education has become ‘big business,’” with one result “the erosion of the faculty’s role in the institution’s decisionmaking process.”
One might object that the current NLRB or Supreme Court are unlikely to apply Yeshiva in good faith to 2025 circumstances, given their hostility to labor rights and to unions (or that they will announce a new, worse standard). Maybe so. But conservatives have been at least as critical as progressives of the rise in central university administrative staffing and influence. More importantly, many NLRB judges and staff will faithfully apply the settled law of Yeshiva to new facts, and it will be years before the Board or the courts decide any appeals.
Beyond the NLRA
Apart from applying the Yeshiva standard to contemporary facts, there is a second opportunity for ladder faculty at private universities to form a union via statute. The NLRA broadly preempts state governments from regulating conduct that is arguably permitted or prohibited by the federal statute or intended by Congress to be left unregulated. One exception, however, is that states may provide collective bargaining rights for workers excluded from NLRA coverage. States have extended such rights to state and local government, agricultural, and home care workers. If full-time faculty are still excluded managerial employees in 2025, then nothing prevents states from granting them collective bargaining rights.
In fact, some states already have. Beginning in the 1930s, many states enacted “Baby Wagner Acts” – state versions of the NLRA – to bolster (and sometimes constrain) the federal law. Some state laws fill specific gaps, such as the NLRA’s exclusion of public employees, while others broadly guarantee the right to form or join a union and to bargain collectively. Faculty in states with a broad Baby Wagner Act can unionize under state labor relations laws.
Such efforts will raise interpretive questions. For instance, the relevant Connecticut statute has a broad definition of “employee” and excludes employers “subject to the provisions of the [NLRA], unless the [NLRB] has declined to assert jurisdiction over such person.” State courts may have to clarify how the NLRB’s lack of jurisdiction over a class of employees fits with a state-law carve-out for classes of employers. In doing so, they will apply the rule that the Baby Wagner Act “is a remedial enactment” that must “be liberally construed,” meaning that any “exemptions or exclusions” are to be interpreted narrowly. And, of course, state legislatures can revise state labor relations statutes explicitly to cover ladder faculty at private universities, ensuring the same rights as their faculty colleagues at public schools. (Recently, some states have also advanced legislation to provide for labor rights even for workers covered by the NLRA – which is preempted under current law – in the event the NLRA is struck down by courts or the failure to appoint a quorum of NLRB members renders the body non-functional.)
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Other academic workers have modeled solidarity and strategic risk-taking in recent campus organizing campaigns. Under the Yeshiva framework and some state laws, ladder faculty at many private colleges and universities today are also covered employees with the statutory right to form unions and engage in collective bargaining. Which faculty will be the first to do so?
