Bloomberg Law
March 27, 2023, 9:20 AM

Punching In: Grad Student Unions Face Duke University Challenge

Robert Iafolla
Robert Iafolla
Senior Legal Reporter
Chris Marr
Chris Marr
Staff Correspondent

Monday morning musings for workplace watchers.

Duke Contesting Grad Student Union|California Bill Targets Caste Bias

Robert Iafolla: While most private colleges have accepted that their graduate student workers can form unions, Duke University has become a higher education holdout that’s contesting the National Labor Relations Board precedent providing that legal right.

Lawyers for Duke will appear Monday at a conference room at the Hilton near the school’s campus in Durham, N.C., to argue that its Ph.D. graduate students aren’t employees with organizing rights.

The hearing before regional NLRB officials begins a long legal process that—unless Duke changes its tune—likely won’t end until 2025 or later with a ruling from a federal appeals court. Litigating it all the way seems guaranteed to rack up a large legal bill for the university, which has two partners from Proskauer Rose LLP assigned to the case, according to the NLRB docket.

“In the short run, the legal fees will probably outpace the increase in pay graduate students would see from a collective bargaining agreement,” said Jeffrey Hirsch, a labor law professor at the University of North Carolina and former NLRB attorney. “In the long run, it could even out.”

Duke’s legal campaign against unionization “is really a question of values,” said William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College-City University of New York.

“The structure of collective bargaining was designed purposefully to mirror political democracy, to create workplace democracy,” Herbert said. “When an institution tries to stop that from taking place, it speaks to the values of the institution.”

Duke said in a statement that it believes its relationship with Ph.D. students is centered on education and “fundamentally different from that of employer to employee.”

The university argues that the NLRB was wrong to extend unionization rights to students working as research and teaching assistants in the 2016 decision in Columbia University. But even assuming that ruling is correct, Duke said in a filing with the NLRB, some of its Ph.D. students still aren’t employees, like those who are funded via fellowships and thus don’t work for the university.

The Ph.D. students see Duke’s legal campaign as a “transparent delay tactic” that has energized them, said Matthew Reale-Hatem, a union organizer and Ph.D. candidate in environmental policy at the university.

An NLRB regional director approved an election in 2017 for essentially the same proposed bargaining unit that will be debated at Monday’s hearing.

The Duke Graduate Students Union, which is affiliated with the Service Employees International Union, lost that election 398-691.

But if Duke Ph.D. students are allowed to vote in 2023, they’ll be casting ballots in a very different environment than six years ago.

There’s been a campus labor renaissance—with graduate student unions winning NLRB-administered elections held in 2022 and thus far in 2023 by overwhelming margins—along with an ongoing strike wave in higher education.

Continued resistance in the face of a union election victory would include Duke refusing to bargain with the union, which would trigger an unfair labor practice case that could serve as the vehicle for eventually challenging Columbia in federal appeals court.


Chris Marr: California would become the first state to specifically ban discrimination based on caste, under state legislation pending in Sacramento.

The bill (SB 403) would add “caste” as a protected category in California’s civil rights laws, following Seattle’s enactment last month of the nation’s first citywide ban on caste bias.

The California bill was inspired partly by a handful of high-profile cases of alleged caste discrimination within the tech industry in the home district of the bill’s sponsor, Sen. Aisha Wahab (D). A former Cisco Systems Inc. worker has sued the company in state court claiming he faced discrimination for his low caste status, and a former Google employee has publicly claimed she faced retaliation for raising concerns about caste bias within the company.

“There are countless others who are facing caste-based oppression who do not feel safe to speak up or speak out,” Wahab said at a press conference to announce her proposal last week. “As California becomes increasingly diverse, our policies and our laws need to stretch further and deeper in protecting more people from basic discrimination.”

The caste system is a form of rigid social stratification based on a person’s family lineage, and predominantly affects people of South Asian descent. There’s debate over whether existing federal and state anti-discrimination laws effectively cover caste discrimination within other protected categories, such as nationality.

But advocacy groups, including the International Commission on Dalit Rights, have called on the federal Equal Employment Opportunity Commission to issue guidance clarifying that caste bias is prohibited under federal law.

The issue has drawn increasing attention, including the addition of caste protections to the anti-discrimination policies of California State, Brown, and Harvard universities, among others.

The movement to target caste discrimination faces opposition from the Hindu American Foundation, which says such policies single out people of Indian and other Asian cultures not only as the likely victims of discrimination but also as the ones discriminating. The group contends that existing, facially neutral anti-bias laws and policies should suffice to oppose caste discrimination.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.

To contact the reporters on this story: Robert Iafolla in Washington at; Chris Marr in Atlanta at

To contact the editors responsible for this story: Genevieve Douglas at; Laura D. Francis at

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