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Fordham Law Review

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This article argues that courts and administrative boards have long analyzed the status of graduate assistants within deficient frameworks that often lead to the wrong conclusions. While the New York University decision reflects a refreshing change, the real question raised by that opinion is not why the Board ruled the way it did, but why it took so long to do so, and why many states have yet to accord their graduate assistants full collective bargaining rights.

The article is divided into five parts. Part I briefly surveys the state of graduate assistant organizing efforts with special focus on recent efforts at one private university (Yale) and one public university (Kansas). Part II examines how faculty and medical housestaff organizations have fared at universities, and how their plight is reflective of the same difficulties that graduate assistants have encountered. Part III sets out three analytic frameworks used by administrative and judicial bodies in their attempts to determine whether graduate assistants possess collective bargaining rights. Under the first framework, the graduate assistants' right to bargain collectively depends on whether they are classified as students or employees. Under the second framework, the right depends on whether they are perceived as primarily students or employees. Finally, the third framework accepts that graduate assistants are employees; whether they have a right to bargain collectively, however, turns on whether they are the right kind of employees (the kind that deserve the protections of state or federal labor laws). Part IV discusses the principal deficiencies of the first two frameworks and argues that graduate assistants are inescapably employees of the university. The final part rebuts the policy arguments advanced in opposition to graduate student collective bargaining in the context of the third framework, and demonstrates that there are no compelling reasons to justify denying graduate assistants full collective bargaining rights.



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