NLRB's Columbia Decision Masks New Federal Encroachment on Campuses

Even for an administration that has dramatically increased the federal government's regulatory presence in higher education, a recent ruling by three of President Obama's appointees to the National Labor Relations Board (NLRB) represents an unprecedented and damaging expansion of federal control. Equally important, it is a move guaranteed to lead to increases in the price of higher education.

The issue is the NLRB's Aug. 23 ruling in a case involving Columbia University about whether teaching and research assistants at private colleges and universities have the right to unionize for higher wages and better benefits. This is not a new issue: the Board first ruled in 1972 that graduate assistants were "predominantly" students and, therefore, could not be regarded as employees.

With one brief exception the Board had not questioned that concept. Historically, any individual who was "predominantly" a student has been seen as ineligible to unionize precisely because they are a student, and their work is intrinsic to their education.

That test is now gone. Thus, the majority opinion quietly used the occasion to institute a vast expansion of federal authority, ignoring the U.S. Supreme Court's 1980 admonition that the nature of a university "does not square with the traditional authority structures" the National Labor Standards Act was designed to cover.

Not only did the NLRB change the most basic criteria that has long underpinned federal law, it expanded the ability to unionize to undergraduate students as well as graduate students. Again, this breaks new ground. It means that a full-time student working a few hours a week, say assisting a faculty member with research or engaging in another experiential work practice, or even as part of a work-study job as part of the student's financial aid package, is eligible to unionize.

We believe strongly that Congress, not unelected officials, should decide who at private institutions is eligible to be unionized. States will continue to decide for themselves how to handle collective bargaining at public campuses. Students are students, and should be regarded as such until Congress passes and the president signs legislation that changes the rule.

In overturning established precedent, the Board contributes mightily to the Obama administration's enormous expansion of the federal regulatory apparatus impacting higher education institutions. By doing so, the decision undermines the administration's oft-cited desire to minimize tuition increases and expand access to higher education. By recognizing any student as an employee and potential union member, the ruling is likely to force institutions to rethink the employment opportunities available to students, including the types of on-campus jobs that help those from low- and middle-income families finance their education.

This decision, especially when combined with the wage pressures imposed by the Department of Labor's recent decision to raise the federal overtime pay threshold, will lead to higher tuition prices for consumers.

It will be up to individual institutions across the diverse spectrum of American higher education, from small faith-based colleges to large research universities, to decide how to react to attempts to unionize students on their campuses. However, if this question reaches the courts, we believe the verdict will establish that this was a misguided ruling that represents a clear example of regulatory overreach.