In recent years, colleges and universities have become a central hub for labor organizing. University staff, graduate workers, and contingent faculty have won significant labor campaigns, as have tenured faculty at public universities. And faculty at some private universities have revived and super-charged organizing within non-union chapters of the American Association of University Professors (AAUP). Yet despite this organizing energy, tenured faculty at private universities have generally not unionized. Why is this?

The conventional answer is that the Supreme Court said they can’t. In 1980, the Court held in a 5-4 decision that tenured faculty at Yeshiva University exercise such substantial authority over university operations that they are more like managers than employees. Thus, decided the Court, these faculty are exempt from coverage under the National Labor Relations Act (NLRA). The Yeshiva decision largely ended union organizing among ladder faculty at private institutions. While courts and the NLRB have since agreed that graduate workers and contingent faculty are “employees” eligible to unionize under the NLRA, they have done so in part by contrasting the limited authority such workers exercise with that of ladder faculty.

As I argue in this brief post, however, the conventional answer is wrong, for two independent reasons. First, even if ladder faculty at some private institutions were properly considered managers in the 1970s, profound changes in the structure and operation of universities over the past fifty years invalidate this conclusion. Given the realities of faculty governance today, ladder faculty at many private universities are properly classified as covered employees eligible to unionize under the NLRA, not exempt managers. Second, even if ladder faculty at private institutions were still appropriately classified as excluded managerial employees in 2025, nothing in the NLRA prevents states from granting collective bargaining rights to excluded faculty—and, in fact, some existing state laws already do.