Independent monitors. Restrictions on protest and dissent. Censorship of curricula. Firings of professors for classroom speech. 

Long in the crosshairs of the conservative movement, colleges and universities have been hit by a barrage of Trump Administration-led attacks on academic freedom, shared governance, and the mission of higher education. The assault has at once revealed faculties’ lack of control over university decision-making and spurred university administrators to further centralize authority. Contrary to longstanding policy, the president of Emory denied its faculty senate any say over the campus’s updated protest policy. Columbia’s president called police onto campus in defiance of a faculty committee. Trustees at the University of Kentucky abolished its faculty senate. The “illusion of shared governance has broken down” at the University of Pennsylvania. And Harvard’s administration is rejecting ever more faculty tenure decisions. 

But, for researchers whose funding has been slashed, instructors whose speech has been chilled, and professors whose participation in university governance has been neutralized, there is a silver lining to the Trump Administration’s onslaught and universities’ preemptive acquiescence: the faculty union seesaw. As a legal matter, when faculty control over university governance goes down, faculty collective bargaining rights go up. And collective bargaining rights are a robust foothold for renewed collective resistance. 

The Seesaw’s Design

In 1970, the National Labor Relations Board asserted jurisdiction over private colleges and universities for the first time. It reasoned that faculty members — including tenured, tenure-track, and non-tenure track “contingent” faculty — were “professional employees” within the meaning of § 2(12) of the National Labor Relations Act and therefore entitled to bargain collectively. A wave of faculty unionization followed. By 1979, nearly 30% of all faculty members were covered by collective bargaining agreements.

But the Board and courts struggled to adapt a federal labor scheme designed for the industrial workplaces and its Fordist hierarchies to the shared governance structures of the academy — a “Procrustean task,” in the words of Justice William Brennan. At many universities, faculty weren’t just employees. Professors oversaw academics, admissions, and finances — through faculty senates, committees, or representation on universities’ decision-making bodies — an arrangement known as “shared governance.”

Although the NLRA explicitly grants union rights to “professional employees,” the Board and courts have read the Act to implicitly deny union rights to “managerial employees” — that is, employees who “represent[] management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” 

In the 1980 case NLRB v. Yeshiva University, a closely divided Supreme Court held that virtually all faculty at “mature universities” exercised managerial power, not professional discretion, and so were outside the NLRA’s protections. That faculty authority over academics was “absolute” — professors determined the courses offered, teaching methods used, grading policies adopted, and even the students admitted and tuition charged — was central to the Court’s analysis.

For over three decades the Yeshiva decision thwarted faculty unionization at private colleges and universities. Then, in 2014, the Board revisited Yeshiva, granting collective bargaining rights to contingent (non-tenure track) faculty at Pacific Lutheran University (a small institution outside Tacoma, Washington). The Board “took seriously the Yeshiva court’s statement that context matters in determining employee status of faculty members.” Noting the ascendance of a centralized corporate model of university governance, the Board found that the conditions undergirding Yeshiva had changed: “[O]ur experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty.” 

The Board reasoned that its application of the Yeshiva standard should change, too. Faculty are managerial employees only if they exercise actual control (not mere “paper authority”) or their recommendations are “almost always followed by the administration” — a “high bar.” Five substantive dimensions of university governance are central to the Board’s analysis: “academic programs, enrollment management policies, finances, academic policies, and personnel policies.” In finding that Pacific Lutheran’s contingent faculty could exercise only limited decision-making authority across those five areas and were thus professional employees (not managers) covered by the NLRA, the Board unleashed a renewed spate of faculty union organizing at private colleges and universities — a 56% increase between 2012 and 2024. 

But Pacific Lutheran remains grounded, necessarily, in Yeshiva’s logic. And the deep irony of Yeshiva, what Professor Risa Lieberwitz has called its “underlying contradiction,” persists. 

Namely, faculty members’ claims to statutory union and collective bargaining are conditioned “on the lack of other collective faculty governance power.” In Yeshiva, faculty members were managerial employees with decision-making authority over key university decisions, and so too powerful to have collective bargaining rights. As faculty power goes up, faculty union rights go down. Conversely, in Pacific Lutheran, faculty members lacked managerial power — key decisions were in the hands of administrators, not professors — and so were entitled to collective bargaining rights. As faculty power goes down, faculty union rights go up.

So shared governance and collective bargaining rights are, as a doctrinal matter, mutually exclusive. It’s a legal formulation, viewed sympathetically, designed to prevent unions’ cooptation by representatives of management. But, in practice, it’s a formulation that effectively denies union rights to employees at the moment they achieve real influence over their employer. Shared governance and collective bargaining shouldn’t be incompatible. They’re parallel tracks for enhancing faculty autonomy. But while the faculty union seesaw persists, academics may use it to their advantage.

The Seesaw in Action

As the Board rightly recognized in Pacific Lutheran, all faculty members — including tenured and tenure-track professors — have shed decision-making authority since 1980, particularly over budgetary decisions and allocations of faculty positions. Indeed, Professor Mike Wishnie has recently argued this very point. As Wishnie also notes, universities’ responses to the Trump Administration’s attacks have revealed the depth of that erosion and induced administrators to further consolidate control.

But where faculty lose shared governance rights, they gain collective bargaining rights. Universities are obligated to bargain with faculty unions over wages, hours, and working conditions, which may include departmental budgets, faculty hiring, and even issues of academic freedom (if framed as “terms and conditions” of employment). Some unions have become the conduits for faculty voice on issues typically reserved for shared governance institutions, like academic policies and university finances. 

And where institutions have been reticent to act, faculty unions have spearheaded resistance to the Trump Administration’s assault on academic freedom, international students’ rights, and critical research funding. Chapters of the American Association of University Professors (many not formally recognized by universities) have brought legal challenges to the Administration’s attempt to dismantle the Department of Education, deport faculty for protected speech, end DEI programs, and terminate grants. And faculty unions have rallied and struck in support of members disciplined by universities for their political advocacy.

Of course, formal legal protections for faculty collective bargaining are not a panacea. Universities may refuse to bargain with their faculty employees, a tactic the University of Southern California recently adopted in fighting a union drive of 2,500 non-tenure-track faculty members. A severely under-resourced NLRB and a Trump Board hostile to labor rights pose substantial impediments to achieving any real remedy. The path to academic freedom runs through the hard work of deep campus organizing. But formal collective bargaining rights — thanks to the faculty union seesaw — are a good start.