Fifty years ago, on 17 May 1954, the unanimous Supreme Court decision in Brown v. Board of Education vastly expanded the rights of African-American students. The half-century commemorations had hardly ended, however, when, on 13 July 2004, another legal decision named Brown had the opposite effect on another group of students. In a case called Brown University, the National Labor Relations Board (NLRB) ruled that graduate assistants teaching courses and working in labs, libraries, museums, and offices on the private campus in Providence have no right to form a labor union.

"Watershed Decision for Grad Students"

The ruling has no effect on the nation's first--and, as yet, only--postdoc union, however. Nor, based on the reasoning in the decision, does it appear to affect the right of postdocs at other universities to organize. But Brown University is "no doubt ... a watershed decision for grad students," said Richard Boris, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, located at Hunter College in New York City. The decision deals a potentially mortal blow to the growing movements for graduate assistant unions at private campuses including Yale, Tufts, Rensselaer Polytechnic Institute, George Washington, University of Southern California, and elsewhere. University of Pennsylvania graduate assistants currently have a petition to unionize pending before the NLRB.

By a 3-2 party-line vote, the NLRB's Republican members, all appointed by George W. Bush, overturned a ruling that in 2000 permitted New York University graduate students to form the first such union on a private campus. The future status of that union, which has a contract in effect, is now unclear. "No one really knows how this is going to play out," Boris said.

Because "we're not covered by the NLRB," the unionized postdocs at the University of Connecticut Health Center (UCHC) are untouched by Brown University, explained Renae Reese, vice president of University Health Professionals (UHP), the American Federation of Teachers local that represents the postdocs. A month before the decision, UHP and UCHC had held a ceremony, complete with a cake bearing a picture of a campus building, to sign their recently ratified contract. The postdocs received raises mandated by the pact.

NLRB's jurisdiction only covers private employers, Reese explained. Workers at public institutions come under state law, which varies widely. As Connecticut state employees, the UCHC postdocs are "covered by the Connecticut State Board of Labor Relations," she continued. In July 2003, that body unanimously rejected UCHC's objections to postdocs becoming a bargaining unit within UHP, which already represented close to 1500 UCHC workers doing a wide variety of jobs.

Workers at all of the nation's other public universities likewise come under the labor laws of their respective states. Since 1969, when University of Wisconsin, Madison, students started the country's first union of graduate assistants, more than a dozen states have recognized the right of graduate students to organize unions on public campuses. New Jersey so clearly acknowledges graduate assistants' status as instructional employees that those at Rutgers University belong to the same bargaining unit as the full-time faculty, according to Donna Euben, staff counsel for the American Association of University Professors.

The precise rights that workers possess at any given moment depend entirely on which body has jurisdiction over their employer, legal experts told Next Wave. The apparent illogic of two people who do exactly the same work for different employers--or even of one person who does the same work in two different institutions--receiving different legal treatment depending on the identity of the employer is inherent in the nation's labor laws, they agreed.

The grad student unionization movement began to gain real momentum in the 1980s, and recent years have seen organizing drives at both public and private universities. According to the NLRB decision, however, Brown graduate assistants are ineligible to form a union because they are not employees. Rather, they "are first and foremost students, and their status as graduate student assistants is contingent on their continued enrollment as students."

In addition, the majority declared, the money that graduate assistants receive does not constitute pay for services because fellowship students who do not have to work receive essentially the same amount. "Brown treats funds to TAs, RAs, proctors and fellowships as financial aid and represents them as such in university-wide or departmental brochures," the majority decision states. "Graduate students assistants receive a portion of their stipend award twice a month, and the amount of stipend received is the same regardless of the number of hours spent performing such services. The awards do not include any benefits, such as vacation and sick leave, retirement or health insurance."

Most Postdocs Defined as Employees

These considerations appear to clearly differentiate graduate assistants from the great majority of postdocs, who appear to meet the definition of "employee" implicit in Brown University. Except for postdocs receiving federal fellowships that explicitly bar them from being considered employees (and who, by the way, are ineligible to join the postdoc union at UCHC), postdocs paid out of grants to principal investigators receive their money through university payroll systems, which generally deduct payroll taxes. When UCHC contested the right of its postdocs to organize, it did not question their status as employees. In the "several months" that the dispute was before the Connecticut State Board of Labor Relations, "no one ever mentioned" that possibility, Reese said. Rather, "management raised a number of objections" based on technical issues concerning the timeliness of the unionization petition and the appropriateness of UHP as a bargaining representative for postdocs. Even the University of Pennsylvania, which is opposing before the NLRB its graduate assistants' attempt to unionize, recognizes postdocs as "research support staff" and requires that they receive health insurance (payments for which are not deducted from their pay) as well as sick, vacation, and new-child leave.

Nonetheless, Euben cautions, one cannot necessarily predict the outcome of any future legal dispute by reasoning from past decisions. Should postdocs at a private university decide to form a union, and should their university oppose that effort before the NLRB, the result would probably "depend on the particular facts of the situation," she said. NLRB decisions "are so fact-sensitive that we won't know definitively how postdocs will be affected until there is a case concerning postdocs." And by that time, the makeup of the NLRB may have changed. "One might say that [ Brown University] is a very partisan ruling," she noted.

Despite this apparently massive setback, the effort to organize teaching and research assistants on private campuses will continue, insists the United Auto Workers, the national union that the Brown graduate assistants were attempting to join. And experts in labor law and collective bargaining emphasize that the law at any given moment is what the body with jurisdiction to decide says that it is. Boris noted that Brown University "was a 3-2 decision," with the two Democratic NLRB members appointed by Bill Clinton strongly dissenting. For now, however, any comparison between graduate assistants at private universities and their counterparts on public campuses will find the former, to paraphrase the 1954 Brown decision, separate and unequal.

Beryl Lieff Benderly writes from Washington, D.C.