SUBMISSION OF JOHN B. LANGEL, ESQ. ON BEHALF OF UNIVERSITY OF PENNSYLVANIA BEFORE UNITED STATES SENATE SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN SERVICES, EDUCATION
Senator Specter, Members of the Committee. It is a pleasure to be here today to address this Subcommittee on an issue of such importance to the preservation of academic freedom at our nation’s great universities, like the University of Pennsylvania, which I have the honor to represent here today.
I am not here to present to you the legal history of these issues, but a little background is necessary. For nearly three decades, the National Labor Relations Board (the “Board”) agreed with Penn’s position that students are not statutory employees because teaching and research are integral parts of the education they receive. In October 2000, the Board departed from this precedent when it found certain graduate teaching and research assistants at New York University had the right to unionize. In doing so, the Board overruled such cases as Adelphi University, 195 N.L.R.B. 639 (1972), and Leland Stanford Junior University, 214 N.L.R.B. 621 (1974), where the Board underscored that the financial support received by graduate students is not compensation for services performed, but financial aid to help graduate students pursue their education.
Then, in July 2004, the Board overruled NYU in the Brown University decision and returned to its long-held recognition that graduate students are just that, students, not employees. Brown University, 342 N.L.R.B. No. 42 (2004). Rather than talk about why the Brown decision was the right decision, legally, I want to talk about graduate education at Penn, with which I became familiar representing Penn throughout the proceedings before the Board.
Penn’s Graduate Student Programs
Penn is one of the country’s premier research institutions. Research is what the faculty do; research is what the faculty work with the graduate students, and indeed increasingly the undergraduates, to teach them to do. Faculty members, students, research professionals, and lab technicians all collaborate to conduct this research, and all contribute to the success of Penn’s research mission.
Beyond their first year of enrollment, many graduate students become increasingly involved in research activities. Students are encouraged early on in their degree program to meet professors, learn the professors’ areas of expertise, and develop relationships with professors whose interests match their own. It is through these mentored relationships that graduate students learn the skills and methodologies that will distinguish them as gifted scholars and researchers.
At the same time, Penn does not operate solely as a center of research, and does not permit its faculty to focus solely on their individual research interests. Teaching is an equal component of Penn’s mission. Students come to Penn to learn, and the duty of teaching them falls to the faculty. Accordingly, all faculty members are expected not only to teach, but to teach at an exemplary level.
Teaching graduate students at Penn is an interactive process. Students learn to teach under the guidance of faculty members. It is expected that, by the time they earn their degrees, Penn graduate students will have had first-hand experience in the major tasks performed by Penn faculty: conducting significant collaborative or independent research; writing grant proposals; authoring scholarly publications about their research; and teaching and mentoring Penn’s other students. Penn expects its graduate students to perform all these functions as graduate students to prepare them for their own careers, as Penn recognizes that the vast majority of its graduate students go on to academic careers of their own. Benefits Provided to Penn’s Graduate Students All graduate students at Penn – not just the select group that the Union has chosen to include in its petition – come to Penn with one goal in mind: to earn advanced degrees while acquiring the skills and expertise necessary for successful careers in their chosen fields. Penn administers its diverse graduate programs with precisely that goal in mind. The programs deliver on that goal through a combination of formal instruction and applied learning. And at the center of Penn’s graduate educational programs are opportunities for students to gain hands-on experience in the most important functional areas of graduate-level education -- teaching and research.
The Union seeks to distort the educational nature of those teaching and research experiences by contending that students who teach and research, while simultaneously receiving generous financial aid that enables them to attend graduate school in the first place, are Penn employees. Let’s start with the financial aid. It is significant, and it bears no direct relation to the services students perform as graduate assistants. Penn’s graduate students receive multi-year funding packages that include:
Fully-paid tuition and fees for each year of enrollment;
A substantial stipend each year to cover living expenses;
Health insurance coverage.
The cost to Penn and the value to the students exceeds $50,000 per student per year.
The funding Penn provides to its graduate degree students is and is intended to be educational financial aid at its core. Graduate education at Penn is expensive. Tuition alone for a full-time graduate student enrolled in classes is more than $20,000 per year. Penn recognizes that Ph.D. students most often go on to academic careers in positions that do not pay well in the early years. Those students, therefore, will have limited resources with which to repay large student loan debt.
At the same time, Penn believes it is important for students to focus full-time on their studies while they are enrolled, in order to receive the maximum educational benefit and to enable them to earn their degrees as quickly as possible. Consequently, Penn offers full funding to these students so that they may be adequately supported to work full-time on their degrees without the distraction or time commitment of employment. The funding students receive is tied to remaining in good academic standing and in making adequate progress towards their degree requirements. It is not tied to performing a certain number of hours each semester of teaching or research work.
Indeed, upon acceptance, Ph.D. students are guaranteed this funding package for four or five years, yet they serve as teaching or research assistants for as little as two semesters, and typically during only portions of two of those four or five years. During the rest of their time as students, when they receive the identical funding package, they devote their time exclusively to their coursework and the beginning stages of their dissertations.
Take, for example, a Ph.D. student in Humanities and Social Sciences. To entice the student to come to Penn, that student is offered a fellowship package, consisting of five years of guaranteed support, including fully-paid tuition, a generous stipend each year and health insurance. In the student’s first year, she concentrates on her own coursework and does not teach. In her second year, she continues to take classes and begins to learn to teach. In her third year, she continues to teach while she finishes her classes and begins to focus on her dissertation. In years four and five, the student has no teaching responsibilities and concentrates entirely on researching and writing her dissertation. The student receives the same funding package throughout all five years without regard to any service she performs.
The Academic Focus of Penn’s Graduate Programs The nature of the services are driven by an educational, not economic, engine. More importantly, the students’ relationship with Penn is an academic one. It is driven by Penn’s mission – to train the next generation of university faculty by preparing its graduate students for successful academic and professional careers.
Students pursuing Ph.D. degrees overwhelmingly seek careers in academia. Penn requires that students pursuing a Ph.D. complete 20 credit units of course work, a series of examinations, and a dissertation. The dissertation is the culmination of sustained research developed to answer an unexplored question within the student’s field. Its purpose is to demonstrate that the student has proven ability to create new knowledge as a researcher after graduation. Most Ph.D. students begin to perform some form of research early in their programs and then progress to the point that their only activity is conducting research in furtherance of their dissertations.
All Penn’s graduate degree programs are structured so that students learn from experienced faculty members how to conduct high level, advanced research within their fields, and to use that knowledge to contribute to the creation of new knowledge. Research assistantships provide students with hands-on experience in the procedural and practical aspects of research in their fields, all in furtherance of their professional development. Students then take that experience and incorporate it directly into their dissertations and research papers.
The academic positions Penn’s Ph.D. students seek after graduation nearly always require the graduates to teach as a major part of their professional careers. To prepare those students properly for academic careers, the majority of Penn’s graduate degree programs require a teaching component. The teaching activities in these programs train the students in both the pedagogical and administrative aspects of instruction at the university level. Moreover, even students who do not receive funding (the so-called “wages” for the “service”), still must take on these teaching responsibilities in order to obtain their degrees.
Penn requires its graduate students to conduct research and to teach for the simple reason that teaching and research is what the vast majority of them aspire to do. Teaching and research are so much a part and parcel of students’ graduate education at Penn that, in many of its graduate programs, serving as a teaching or research assistant is a degree requirement no different than taking certain courses. Indeed, graduate students often receive course credit for their teaching and research activities. Like other aspects of their studies, graduate students’ teaching and research activities are reviewed by the students’ instructor and made part of their academic record. And just like other aspects of their degree programs, poor teaching or research performance can jeopardize academic standing. This fundamental nexus between the service a teaching assistant performs and the students’ own academic program is enhanced and exemplified by the fact that, at Penn, graduate students teach only in classes within their discipline and, most often, ones that relate to their particular areas of specialization. So too in the research arena. Graduate students serving as research assistants are matched with faculty members whose research interests coincide with their own. In fact, in the vast majority of cases, the research Ph.D. students perform as research assistants is the very same research the students conduct for their dissertations.
Treating Students as Employees Threatens Academic Freedom
As the Board in Brown recognized, extending collective bargaining rights to graduate students risks transforming this fundamentally academic endeavor, as it would seriously intrude upon and infringe universities’ basic academic freedoms. Academic freedom is not some lofty or theoretical concept. It lies at the core of Penn’s mission, and lives and breathes throughout its graduate programs on a daily basis.
The United States Supreme Court recognizes that a university enjoys four essential freedoms . . . to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught and who may be admitted to study.
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957). Indeed, according to the Supreme Court, “[u]niversity faculties must have the widest range of discretion in making judgment as to the academic performance of students and their entitlement to promotion or graduation.” Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96 n.6 (1978).
In direct contravention of the Supreme Court’s admonition to allow universities to manage their own academic affairs, imposing collective bargaining on Penn’s relationship with its graduate students would interfere with each of Penn’s “essential freedoms.” Penn would be required to bargain over terms and conditions of employment that, according to the Board, are mandatory subjects of bargaining, which would result in a direct conflict with the faculty’s academic decisions concerning the course of studies for its graduate students. Consider the following:
Under the NLRA, procedures governing the discipline and discharge of unit employees are a mandatory subject of bargaining. See Washoe Med. Ctr., Inc., 337 N.L.R.B. No. 32 (2001). Many of Penn’s graduate programs do not permit graduate students to act as teaching or research assistants unless they remain a student in good academic standing. Thus, to allow Penn’s graduate students to engage in collective bargaining over just cause discipline protection and a grievance and arbitration procedure – standard protections sought by unions in nearly all contract negotiations – would intrude upon Penn’s fundamental right to determine for itself which students are entitled to remain in its academic programs.
Standards of employee work performance also are a mandatory subject of bargaining. Tenneco Chems., Inc., 249 N.L.R.B. 1176 (1980). Student performance as teaching and research assistants is used as a basis for evaluating the academic progress of graduate students. Allowing students to bargain over standards of “work” performance would result in a clear erosion of Penn’s academic freedom to determine which students have met their program’s academic requirements and standards and thus may remain students in good academic standing.
An employer’s decision to use supervisors to perform bargaining unit work is also a mandatory subject of bargaining. Hampton House, 317 N.L.R.B. 1005 (1995). At Penn, many departments choose to have faculty members teach labs or recitation sections rather than graduate students. Thus, Penn’s academic freedom to structure and teach classes in the manner its faculty find most effective would be affected by graduate student collective bargaining.
Assignment of work is also a mandatory subject of bargaining. Engineered Control Sys., 274 N.L.R.B. 1308 (1985). At Penn, professors choose students to be their teaching, and especially research assistants, based upon a variety of factors, including the students’ interest in the professors’ academic discipline. Allowing students to bargain over how these selections are made would prevent professors from working with students who most closely share their own academic interests.
These examples illustrate the concerns recognized by the Board in Brown that extension of collective bargaining rights to graduate students will intrude upon universities’ academic freedom. The unions’ arguments that such academic decisionmaking can be cordoned off from the collective bargaining process ignores the substantial autonomy granted Penn’s graduate programs to shape and structure all aspects of their students’ educational programs.
The Board in Brown found:
Imposing collective bargaining would have a deleterious impact on overall educational decisions by the Brown faculty and administration. These decisions would include broad academic issues involving class size, time, length, and location, as well as issues over graduate assistants’ duties, hours, and stipends. In addition, collective bargaining would intrude upon decisions over who, what, and where to teach or research – the principal prerogatives of an educational institution like Brown.
Brown, slip. op. at 8.
GET-UP’s Proposed Unit Divided Penn Graduate Students
Another myth I need to dispel is that unions seeking to organize graduate students, including GET-UP, seek to represent all graduate students. In fact, they seek to impose the “employee” model on only a limited portion of a diverse graduate student population. The bargaining unit GET-UP sought to represent at Penn was both divisive and illogical.
In short, what GET-UP proposed was a unit oddly divorced from its own purported concept that graduate students are employees because they engage in “work for pay.” Consider the following:
Students who receive a stipend and tuition and teach or research were included in GET-UP’s proposed bargaining unit, but students who receive hourly pay and provide the same “service,” even within the same departments, were excluded. We could never understand why.
Professional students (that is law students and M.B.A. students) were excluded altogether, regardless of whether they teach or research.
Wharton Business School Ph.D. teaching assistants were included, but Wharton M.B.A. teaching assistants, performing in the identical teaching in the very same class as the Ph.D. students, were excluded.
Before the Board’s Brown decision, these illogical and inconsistent distinctions were being made all over the country. Consider the chaos as reflected in the following:
A “natural science” research assistant working toward his dissertation while supported by an external grant at NYU is not a member of the bargaining unit, though if he went to Columbia or Tufts and were supported by that same grant, he would be a member of the bargaining units at those schools. Had he chosen Brown or Penn, however, he would not be eligible for union representation.
A teaching assistant in the Business School at Columbia would be in Columbia’s bargaining unit, but the same TA would not be in Penn’s bargaining unit if pursuing an M.B.A. But, at the same time, the M.B.A. TA at Penn would be in the bargaining unit if he were pursuing a Ph.D.
A student serving as a research assistant in Penn’s Graduate School of Education would be included in the unit if pursuing an M.S.Ed., excluded if pursuing an Ed.D., and included if pursuing a Ph.D., notwithstanding that all three research assistantships carry the same responsibilities.
A student teaching legal research and writing at Columbia would be a member of the bargaining unit, yet a student serving in the same role at Penn would not.
A Penn Engineering student serving as a teaching assistant for one semester as part of his academic program (an Engineering Ph.D. academic requirement), would be in the bargaining unit for that one semester even though he has no expectation of being a TA for any more than one semester. Yet, the Penn M.B.A. student, serving as a teaching assistant for twice as long would be excluded from the unit. The same Engineering student grading papers the following semester would not be in the Penn bargaining unit, even though grading papers is a TA function. At NYU, Columbia or Tufts, however, his grading duties would place him in the bargaining unit. The distinctions the unions sought to make between different groups of students performing the same teaching and research functions bear no rational relationship to their claim of wanting to represent student “employees” and are impossibly divisive to the university communities.
Graduate Students Are, At Most, Temporary Employees
GET-UP maintains that the service performed creates an employee model. Yet, even GET-UP recognizes that these services are performed for a brief and finite duration – only a portion of the five years. These facts highlight an additional reason – one that the Board does not mention in the Brown decision – that graduate students are not subject to unionization. Graduate students are, at most, temporary employees who have no right to unionize under the NLRA and the Board’s long-standing precedent. The Board’s test for determining temporary employment status is simple, straightforward, and well-settled: whether the employee’s “prospect of termination was sufficiently finite on the eligibility date to dispel reasonable contemplation of continued employment beyond the term for which the employee was hired.” St. Thomas-St. John Cable TV, 309 N.L.R.B. 712, 713 (1992). Under this test, even if one were to assume that graduate students are employees, they are, at most, temporary employees. No Penn graduate student has any reasonable contemplation of continued “employment” beyond the duration of his or her studies. No Penn graduate student has any expectation whatsoever of a permanent position. All appointments are finite, for periods substantially less than the duration of the student’s studies. Indeed, many appointments last no more than a single academic semester.
Graduate Students are Students, Not Employees In short, the attempt to place an employee label on Penn’s graduate students distorts the educational nature of graduate students’ teaching and research experiences. This effort to hammer the square economic employment relationship at the heart of collective bargaining into the round academic relationship between graduate student and university ignores what drives students to attend graduate school in the first place, and the totality of circumstances that shape their experience for the brief and finite time they are there.
Recognizing this, the Board in Brown found that graduate students were primarily students, not employees. The Board stated:
It is clear to us that graduate students assistants…are primarily students and have a primarily educational, not economic, relationship with their university.
Brown, slip. op. at 5. This finding is unquestionably the right one at Penn.
