Category: COVID-19

  • A generation of students has been failed and forgotten again

    A generation of students has been failed and forgotten again

    Back in April 2020, with all the lovely weather we’d been having, I was yearning for a holiday.

    But I wasn’t sure the offer I was reading from a tour operator really stacked up.

    “Because of Covid-19”, said the brochure, “by the time your holiday due date arrives we might not be able to get you there and even if you get there yourself, we might not have any of the facilities open. If that’s the case and you book anyway, please note you’ll neither be entitled to a refund nor a discount, but you will get to watch some people swimming in a pool on YouTube. You’ll also be able to join in with our holiday chat on Zoom. And you jolly well better risk booking it – because holidays will be much harder to come by next year!”

    It sounded pretty unreasonable to me. And probably unlawful. But someone somewhere in central government appeared to disagree.

    In the impact assessment that accompanied the emergency Coronavirus Bill a month previously, officials had explained the implications of the power to close campuses – and as well as discussion on how compensation for universities might work, the section contained this ominous line on students:

    Where there are concerns to protect HEPs from being sued for reneging on their consumer protection (and/or contractual) obligations in the event of course closure we believe force majeure would be relevant.

    For me, it was that that set the tone for the entire way in which the pandemic was handled when it came to students and universities. The understanding was that students would pay. And they very much did – in more ways than one.

    As such, ever since March 2020, I’ve been imagining the moment when a minister or senior civil servant might be called by an inquiry to account for the catalogue of catastrophes that were the handling of higher education during Covid.

    I wanted to know if then-universities minister Michelle Donelan really believed that students would succeed if they did as she suggested and made a complaint about quality. I was keen to understand why campuses were being told to operate at 30 per cent capacity while the halls on their edges operated at 100 per cent.

    I wanted to know whether DfE’s plan in the run into September really was to get everyone to turn up, stick it out for a few weeks so that the fee liability kicks in, and then blame external factors when the sector inevitably had to shut campuses back down.

    I wanted to know why students were consistently left out of financial compensation measures, ignored in guidance and policies, told to pay the rent on properties they were told not to occupy, gaslit over quality and “the student experience”, and repeatedly blamed for transmitting the virus when they’d been threatened with losing their place if they deferred.

    Above all, I wanted to know why anyone, at any point, really thought that they should be paying full fees for the isolating omnishambles that they eventually experienced.

    I had reason to be optimistic. The UK COVID-19 Inquiry was set up as an independent public inquiry examining the UK’s preparedness and response to the pandemic through multiple modules.

    Module 8, which opened in May 2024, was to focus specifically on the impact of the pandemic on children and young people across all four UK nations. Universities and students were included in Module 8 because the inquiry defines “young people” to include those aged 18-25 who attended higher education or training during the pandemic.

    It was supposed to examine the full spectrum of educational disruption from early years through to universities, investigating decisions about closures, reopenings, exam cancellations, online learning adaptations, and issues like student isolation in halls of residence, as well as the broader impact on mental health, wellbeing, and long-term consequences for this generation.

    Well guess what. Yesterday was the final day of three weeks of testimony from ministers, civil servants, regulators, charities and other experts. And the total number of times that university students have been mentioned? Zero.

    Hope springs eternal

    If I think back to that March 2020 impact assessment, the logic appeared straightforward – with DfE struggling to extract funding from the Treasury for education, let alone for universities or students, the simplest solution to an assumption that Covid would bankrupt the sector was to ensure fee income continued flowing.

    Universities wouldn’t go bust as long as students could be persuaded not to defer en masse, which would have created a difficult demand spike the following year.

    The problem was how that was done. By the end of March, all sorts of people were calling for a Big Freeze – a pause to September enrolment. The case was straightfoward – universities couldn’t deliver what they were promising, students couldn’t make informed decisions, and the public health risks were unknown.

    But the government’s response was Education Secretary Gavin Williamson announcing in June that there was “absolutely no need for students to defer”, while universities Minister Michelle Donelan told students not to defer because “the labour market will be precarious” and that universities had “perfected their online offer” – despite having only weeks to prepare.

    Donelan repeatedly pushed a “business as usual” message, telling prospective students that September would go ahead with perhaps some online teaching but no real disruption worth worrying about. The Department for Education (DfE) published generic FAQs and social media messages encouraging students to enrol as normal, despite universities having no idea what they could actually deliver. Later in the year, Universities UK joined in with a social media campaign that told students going to university that September would show “strength” and that they “refuse to be beaten”.

    Meanwhile the Office for Students (OfS) imposed and then repeatedly extended a moratorium on unconditional offers – ostensibly to protect students from being rushed into decisions – but without addressing the fundamental problem that universities couldn’t provide the “material information” required by consumer law about what students would actually receive for their money.

    The regulatory system proved entirely inadequate for the crisis. Student Protection Plans, which were supposed to set out risks to continuation of study and mitigation measures, had never been properly enforced and became instantly obsolete. When COVID hit, the regulator made no move to require universities to update their risk assessments, even as financial viability, course delivery, access to facilities and support for disabled students all became dramatically more precarious.

    The Competition and Markets Authority’s consumer protection requirements – which clearly stated students must receive what they expected – were essentially ignored, with DfE telling students that as long as “reasonable efforts” and “adequate” alternatives were provided, they shouldn’t expect refunds. Nobody defined what “reasonable” or “adequate” meant in a pandemic, leaving students with no meaningful protections despite paying £9,250 in fees.

    The absence of any coordinated national approach left universities making contradictory announcements and students facing impossible choices. Cambridge declared all lectures would be online until summer 2021, while Bolton promised a fully “COVID-secure” campus with temperature scanners and face masks. Both still expected students to move house and live in halls of residence, with no clear government guidance on whether mass student migration was safe or legal under social distancing rules.

    There was no extension of maintenance loans despite part-time work vanishing, no student furlough scheme to allow pausing or extending studies, no support for those whose courses couldn’t meaningfully continue, and no plan for accommodation contracts due to start on 1 July.

    Students faced being charged full fees for a drastically reduced experience, with no agency over whether to accept major changes to their courses, no compensation mechanisms, and no honest assessment from universities about what would actually be available – all while being told they should “take time to consider their options” and make “well-informed choices” without any reliable information to base those choices on.

    Summertime scramble

    By June, the absence of any meaningful government planning or support became intolerable. The Office for Students told a student conference that provision needed to be “different but good – not different but bad” but when pressed on what “good” meant, admitted it was a “very good question” and had no answer.

    Its baseline standards were expressed only as outcomes-based metrics that would take 18 months to show up in surveys, leaving universities and students with no clarity about minimum acceptable standards for the pandemic era. Its position appeared to be that it would only intervene if there was a major risk to provider finances, not student welfare – representing “provider interest” rather than “student interest”.

    The government’s approach to student hardship was even worse. After Chancellor Rishi Sunak repeatedly claimed the government was doing “whatever it takes” for people affected by COVID-19, the Department for Education announced on 4 May a £46 million “support package” for students in financial difficulty.

    But this wasn’t new money at all – it was just two months’ worth of existing “student premium” funding that universities were being told they could “repurpose” for hardship funds. The actual sum available was far smaller once you accounted for the fact that much of this funding was already committed or spent on staff costs for widening participation work that hadn’t stopped. In Canada, by contrast, the government announced the equivalent of £736 per month per student until the end of the summer.

    As August arrived with weeks to go before term started, the sector lurched towards chaos. Despite OfS CEO Nicola Dandridge demanding in May that students receive “absolute clarity” about what was on offer before confirmation and clearing, and OfS Chair Michael Barber saying on results day that “universities should set out as clearly as possible what prospective students can expect”, the reality was almost total opacity. Most universities were still offering vague “blended” mood music rather than specifics, with course pages unchanged from before the pandemic.

    On August 30th, the University and College Union called on universities to “scrap plans” to reopen campuses, warning they could become “the care homes of a second wave”. Independent SAGE had published detailed recommendations on 21 August including mandatory testing, online-only teaching except for essential practical work, and COVID-safe workplace charters – but with students already arriving to quarantine, any changes were impossibly late.

    Fresh guidance

    Scotland’s guidance emerged on 1 September, but contained no provision for mandatory testing despite weeks of signals that it would be required, and placed responsibility for enforcement of quarantine and disciplinary measures firmly on universities without clarity on their jurisdiction over private accommodation.

    Then at precisely 1.18am on Thursday 10 September, the Department for Education published guidance for higher education on reopening buildings and campuses in England – and in many ways, it symbolised handling throughout. It insisted on “provider autonomy” and made clear that “it is for an HE provider, as an autonomous institution” to manage risks, while simultaneously dictating detailed operational requirements.

    The responsibility allocation framework seemed systematically designed to deflect blame from government onto universities and students. Despite acknowledging that “mass movement” of students created risk and that Public Health England and local authorities logically should lead outbreak response, the guidance repeatedly assigned universities responsibility for “ensuring students are safe and well looked after” – an impossible mandate for commuter students and adults in private accommodation.

    The testing infrastructure was inadequate and contradictory – walk-through test sites weren’t going to be ready until late October, asymptomatic testing was restricted due to “national strain on testing capacity,” all while universities were warned against running their own testing programs due to complex legal obligations. Contact tracing guidance had obvious holes, particularly compared to Scottish requirements, and did nothing to address the myriad disincentives students faced in getting tested or self-isolating.

    The most damning part was arguably the government’s fatalistic acceptance that outbreaks would occur while simultaneously allowing the “mass migration” to proceed. Both SAGE analysis and the guidance itself acknowledged that increased infections and outbreaks were “highly likely,” yet the entire year could have been “default online.” The government was “doing all it can” while creating the very conditions guaranteed to spread the virus, then pre-allocating blame to students and universities.

    Mental health support amounted to telling autonomous institutions they were “best placed” to handle it themselves, backed by that £256 million that was actually a cut from the previous year’s £277 million – only accessible by making swingeing cuts elsewhere. The guidance exempted halls of residence from gathering limits without explaining why publicly, mentioned nothing about the 200,000 students in private halls, and dumped international student hardship onto universities despite “no recourse to public funds” rules.

    Overall, the government’s handling of the student return to campus in September 2020 was marked by confusion, contradictions and last-minute changes that left universities and students scrambling. Key regulations like the “rule of six” were published at 23:44 on 13 September – just 16 minutes before they came into force – giving institutions no time to communicate changes to students despite DfE saying providers were “responsible” for ensuring awareness.

    The lack of clarity extended to fundamental questions like what constituted a “household” in student accommodation – with profound implications for who could socialise with whom, who had to self-isolate and whether students could return home at weekends – yet no clear legal definition was provided despite fines of up to £10,000 being threatened.

    Different ministers gave contradictory guidance on who was responsible for refunds and financial support – with Nicola Dandridge saying it was a matter for government, Number 10 saying it was a matter for universities and Gavin Williamson suggesting students could complain through the Office for Students.

    By now, the Secretary of State was repeatedly claiming that £256 million was available for hardship funding when this was actually existing student premium funding that had been cut in May, and trumpeted £100 million for digital access that turned out to be a schools fund covering perhaps 650 care leavers worth around £195,000 in total.

    SAGE advice to government warned that a national coordinated outbreak response strategy was urgently needed, that universities should provide dedicated accommodation for isolation and that enhanced testing would be required for clusters. None of this made it into DfE guidance. Instead public health teams were left to improvise, leading to entire buildings of 500 students being locked down when the “household” concept collapsed, while students who actually had Covid were legally allowed to travel home to self-isolate there.

    The quality of data and assumptions going into SAGE about student behaviour was poor – minutes from September meetings showed “low confidence and poor evidence base” yet still concluded students posed risks of transmission, particularly at Christmas when they would “return home” – a framing that completely ignored commuter students and those who travelled home every weekend.

    And we’re off

    As term began, research from Canada and the US suggested reopening campuses substantially increased community infections, yet the government pushed ahead without adequate testing infrastructure in place – with even Dido Harding admitting to Parliament that Test and Trace had failed to predict demand from students despite the obvious likelihood of “Freshers’ Flu” generating testing requests.

    Students were singled out for treatment that was stricter than other citizens yet without equivalent support – expected to self-isolate without access to the financial cushions available to others, unable to claim Universal Credit, threatened with £10,000 fines and faced with university disciplinary action including expulsion.

    Universities Scotland announced students must avoid all socialising outside their households and not go to bars or hospitality venues – a “voluntary lockdown” that was later rowed back as merely a “request” after it caused uproar. Meanwhile Exeter implemented a “soft lockdown” asking only students not to meet indoors with other households, and Scotland threatened to prevent students returning home at weekends – measures that had never appeared in any government guidance or playbook yet were being invented on the fly by local officials.

    The sector was essentially told to operate minimum security prisons while still charging full fees for an experience that bore no resemblance to what had been promised, with no clarity on legal rights to refunds despite the Competition and Markets Authority having provided detailed guidance on partial refunds for other sectors like weddings and nurseries. The fundamental question of what students were supposed to do all week beyond online lectures was never answered – and the predictable result was isolation, mental health crises and outbreaks that vindicated warnings the sector had been making since summer.

    By October, a cascade of evidence had emerged showing fundamental government failures in managing the return of students to universities. The central mistake was allowing student accommodation to operate at 100 per cent capacity whilst carefully reducing every other setting to around 30 per cent, including lecture theatres, libraries, corridors, catering outlets, shops, bars, public transport and social spaces. SAGE had warned as early as September that housing posed major transmission risks due to large household sizes, high density occupancy, poor quality housing and poor ventilation.

    Despite commissioning advice from SAGE on the role of housing in transmission, neither the Department for Education nor the Ministry of Housing, Communities and Local Government acted on recommendations to reduce occupied density. DfE had asked for specific guidance on student accommodation as early as 8 July, yet the resulting advice failed to implement SAGE’s core recommendation that “we really ought to have been reducing occupied density”.

    Ministers instead expected students to spend carefully distanced time on campus for three or four hours weekly, but for the rest of the week to remain in spaces “never designed to be used this intensively, with inevitable results”.

    The government rejected crucial scientific advice at multiple points. On 21 September, SAGE recommended that “all university and college teaching to be online unless face-to-face teaching is absolutely essential” as part of a package to reverse exponential rises in cases, estimating this would reduce the R number by 0.3. Ministers explicitly rejected this recommendation, with universities minister Michelle Donelan maintaining the line that “we decided to prioritise education”, despite students being confined to online learning in tiny rooms anyway.

    The government also failed to implement mass testing strategies recommended by both SAGE and the CDC, despite promising repeatedly to deliver testing capacity. Students requiring self-isolation received no financial support, being excluded from the £500 Test and Trace Support Payment available to other citizens on low incomes, with most local authorities refusing to include students in discretionary schemes.

    SAGE had explicitly warned that “students in quarantine require substantial support from their institution during the period” and that “failing to provide support will lead to distress, poor adherence and loss of trust”, yet the government provided no funding beyond expecting universities to redirect existing hardship funds.

    Jingle bells

    As the country looked to Christmas, no UK-wide coordination existed for managing student migration, with four-nations discussions chaired by Michael Gove only beginning in late October. Guidance on safely managing returns remained unpublished throughout October despite ministers knowing since March that student migration posed transmission risks.

    Students fell through gaps between departments, with DfE, MHCLG and DWP unable to agree responsibility for financial support, testing strategies or housing standards. Working students in hospitality and retail lost employment income but found themselves excluded from benefits, discretionary payments and adequate hardship fund support, with some resorting to commercial credit to pay rent arrears.

    As Christmas got closer, the government’s handling of higher education descended into a familiar pattern of late guidance, ignored scientific advice and policy decisions designed to avoid financial liability. DfE repeatedly issued vague guidance that left universities to make difficult decisions about face-to-face teaching – explicitly to avoid being drawn into fee refund claims – while ministers like Michelle Donelan insisted that “blended learning” must continue despite SAGE’s repeated recommendations to move teaching online.

    When guidance on Christmas travel and January’s return finally emerged, it came so late that universities couldn’t meaningfully prepare, and students faced impossible choices between physical and mental health. Office for National Statistics data revealed that 65 per cent of students in mid-November were receiving zero hours of face-to-face teaching – despite government rhetoric about prioritising in-person education – while student anxiety levels (6.5 out of 10) dramatically exceeded the general population (4.3 out of 10).

    The government’s failure to address accommodation density became undeniable when Public Health Scotland published evidence that traditional halls of residence with “households” of up to 30 people had fuelled transmission, with almost 3,000 cases associated with student accommodation and the majority occurring in a three-week period in September-October.

    Students described having to remain in small rooms without access to food, fresh air or exercise during self-isolation, with some international students arriving to empty buildings with no support, no SIM card to order food and no meaningful mental health provision despite contractual promises.

    The government’s solution for Christmas was to create complex household bubble rules that meant some families with multiple students away from home couldn’t all gather together, while hundreds of international students and care leavers faced spending the entire break isolated in university towns with no meaningful support beyond opened canteens where they still couldn’t mix with others.

    Auld lang syne

    As the new year approached, the government announced a “staggered return” that would see some students barred from returning to paid-for accommodation for up to nine weeks, with no rent rebates offered – and Minister Donelan explicitly telling universities that “any issue about accommodation is for the universities to address with students”. The mass testing programme was revealed to have serious efficacy problems – with one study suggesting the lateral flow tests detected just over 3 per cent of cases – and participation rates of around 7 per cent in Scotland.

    Despite mounting evidence about the failure to deliver “blended learning”, worsening mental health and the concentration of infection in accommodation rather than teaching spaces, ministers continued to frame policy around getting students “back to campus” while simultaneously telling them to stay away, creating a chaotic situation where students couldn’t plan, universities couldn’t prepare and the January term faced collapse before it began.

    By January 2021, the government had announced that some students could return to campus, but the policy was riddled with problems from the start. Michelle Donelan’s attempt to specify eligible subjects using HeCOS vocabulary was marred by missing code numbers and duplications, and ignored both professional bodies’ actual requirements and basic public health principles. The Department for Education essentially determined which campuses would see large student numbers purely by virtue of subject mix – meaning some universities like King’s College London expected over 6,500 students while others like LSE had virtually none.

    Worse still, the policy showed no consideration of local Covid case rates, with the data showing numerous providers expecting large numbers of “tranche one” students in areas with high infection prevalence. No professional body was actually insisting students be on campus during a “terrifying third phase of a pandemic” – yet the government was.

    The legal restrictions that came into force on 5th January created even more chaos. Nothing in the regulations actually changed specifically for higher education, yet guidance from DfE contradicted existing legal exemptions – for example, insisting that campus catering had to be takeaway only when the law explicitly allowed “cafes or canteens at a higher education provider” to open.

    The movement rules allowed students studying away from home to move back to their student housing before 8th February, yet DfE guidance urged them to stay away – creating a situation where students were being told they couldn’t use properties they were legally entitled to occupy and were being forced to pay rent on.

    Meanwhile, emerging research painted a terrifying picture that government policy largely ignored. Cambridge’s genomics work suggested little transmission between students and the wider community in their specific context, but a separate study of 30 universities found that 17 campus outbreaks translated directly into peaks of infection in their home counties within two weeks.

    The government’s lateral flow testing programme was riddled with problems. Data from Scotland’s pre-Christmas exercise showed that 28.5 per cent of positive lateral flow tests were false positives when PCR-confirmed – yet the government then removed the requirement for PCR confirmation in England in February, potentially causing thousands to self-isolate unnecessarily while eliminating the data needed to assess test accuracy.

    Research showed the type of test mattered enormously and that high participation rates were key to any testing programme’s success, yet participation in university testing remained abysmal – in one week in February just 100,000 tests were conducted across English higher education, suggesting only around 2.5 per cent of students were being tested despite government insistence on twice-weekly screening. The cost per positive result in community testing was around £20,000 when prevalence was low, and the government appeared to have learned nothing from the pre-Christmas pilot about why students weren’t engaging.

    On accommodation, ministers merely “urged” landlords to offer rent rebates while keeping students away from campuses, refusing to underwrite rebates or mandate them. And the government’s handling of vaccination access created additional problems – students studying away from home could only access vaccines where their GP was registered, but the NHS insisted students could only be registered with one GP at a time. It meant that students isolating at home due to health conditions were offered vaccines at their university address hundreds of miles away, creating impossible choices.

    Summertime sadness

    As the term continued, universities minister Michelle Donelan repeatedly told parliament that the Office for Students was “actively monitoring” the quality of provision and that students dissatisfied with teaching could complain to the OIA for potential refunds. But OfS confirmed it wasn’t monitoring quality in any meaningful sense – it had merely made some calls to universities in tier 3 areas – and the OIA re-clarified that it couldn’t adjudicate on academic quality matters. The disconnect between ministerial assurances and regulatory reality left students without the redress mechanisms they had been promised.

    Similarly, the government’s approach to student return dates proved chaotic – initially planning for staggered returns from mid-February, then pushing back to March 8th for only “practical” courses, then suggesting a review “by the end of Easter holidays” for everyone else. By May, the government confirmed remaining students could return from Step 3 on May 17th – by which point teaching had largely finished for most.

    The maintenance loan system created further problems – initially, officials planned to reassess loans downward for students no longer in their term-time accommodation, despite many still paying rent. Only after intervention was this policy reversed, with “overpayments” instead added to loan balances. Meanwhile, students on courses requiring practical work faced significant challenges – many would be “unable to complete” without access to facilities yet received no extensions to maintenance support or additional hardship funding.

    The graduate employment situation was similarly neglected, with unemployment among recent graduates rising to 18 per cent for both graduates and non-graduates, reaching 33.7 per cent for young Black graduates. The government’s response was merely to create a six-step collection of weblinks hosted on the OfS website rather than meaningful job guarantee schemes or funded postgraduate study.

    A failure to learn

    There are so many other aspects I haven’t covered here, and so many more issues I’d have loved to see ministers account for. The international student experience deserves its own inquiry – from those trapped abroad unable to access online teaching due to time zones and VPNs, to those who arrived to empty campuses having paid flights and deposits they couldn’t recover.

    The impact on disabled students who lost access to essential support services. The postgraduate researchers who saw years of lab work destroyed or delayed. The creative arts students paying full fees for courses they literally couldn’t do from their bedrooms. The teaching quality collapse that was dismissed as “blended learning”. The mental health crisis that was met with a cut to support funding dressed up as additional help. The list is almost endless.

    But even if all these issues had been put to ministers at the inquiry, even if we’d heard testimony about employment, housing, transport, testing, health, isolation support, and student finances, we’d likely have faced the same problem we always do with students and higher education. Just as we see outside of pandemics, other government departments simply don’t think about students.

    They’re not on the radar at the Treasury, at MHCLG, at DWP, at DHSC. Students fall through the gaps between departmental responsibilities, and the Department for Education – already stretched covering schools, further education, and early years – doesn’t have the influence, the power, or the capacity to force the student interest to be considered in decisions made elsewhere.

    When Test and Trace payments were designed, nobody thought about students. When furlough was created, nobody thought about students. When housing regulations were written, nobody thought about students. And DfE either didn’t notice – or couldn’t do anything about it.

    The problem is that if the decisions aren’t examined, the lessons won’t be learned. And there are crucial lessons that go far beyond the specifics of this pandemic.

    The first is about responsibility and coordination. Throughout the entire saga, nobody seemed to be in charge. Was it DfE setting the policy? Was it universities exercising their autonomy? Was it local public health teams managing outbreaks? Was it MHCLG regulating housing? The answer appeared to be all of them and none of them, with each able to blame the others when things went wrong.

    The tension between treating universities as autonomous institutions who should be “free” to make decisions, and then dictating detailed operational requirements while disclaiming responsibility for the outcomes, was never resolved. The sector demanded provider autonomy and then was sore when society blamed providers when they made autonomous decisions that some didn’t like.

    Second, there’s the fundamental question of whether universities are part of the education system or something else entirely. They were conspicuously left out of education prioritisation decisions, treated neither as essential education that should continue (like schools) nor as adults who could make their own choices (like the general population).

    Instead they occupied a weird middle ground where they were expected to operate like big schools – following government guidance, prioritising in-person education, being “responsible” for students – but with none of the government support or coordination that schools received. Students were simultaneously infantilised (being told they couldn’t be trusted to socialise responsibly) and abandoned (being told they were autonomous adults who should sort out their own problems).

    Third, the pattern of guidance arriving impossibly late – or not at all – for me was a systematic failure to (scenario) plan. Regulations published 16 minutes before coming into force. Christmas travel guidance arriving when students had already booked transport. January return policies announced in December. Testing strategies finalised after students arrived. It wasn’t just poor planning – it was policy-making that appeared designed to avoid being pinned down, to maintain government flexibility at the expense of everyone else’s ability to prepare. And crucially, it was lateness that consistently disadvantaged students while protecting government and institutions from liability.

    Fourth, the entire approach suggested to me an implicit hierarchy where protecting university finances trumped protecting students. That impact assessment in March 2020 said the quiet part out loud – force majeure would be relevant because universities had to be protected from being sued for breaking their consumer obligations.

    Everything else flowed from that – encouraging enrolment even when delivery was uncertain, maintaining full fees regardless of quality, shifting hardship costs onto universities through repurposed funding, avoiding clear guidance that might create refund obligations, and telling students to complain to regulators who couldn’t actually help them. The system was designed to keep money flowing, not to deliver value or protect students.

    And fifth, regulatory failure was baked in from the start. In England, the Office for Students proved entirely unfit for purpose in a crisis – unable to define quality standards, unwilling to intervene on student welfare, focused on provider finances rather than student interests, and apparently content to let ministers mislead Parliament about the protections it was providing. The gap between what ministers promised (monitoring, complaints routes, refunds) and what regulators could actually deliver left students without redress at the precise moment they needed it most.

    None of these lessons are being learned because none of these decisions are being examined. And perhaps that absence reflects something deeper. Everyone involved – universities, the Office for Students, the Department for Education, ministers – were invested in suggesting that what was planned would work, was working, and did work. Partly that was about reputation. Partly it was about liability. Partly it was about avoiding the cost of refunds.

    But the effect was the same – it prevented and continues to prevent any honest reckoning about what didn’t work, who was failed, who was damaged, and who was let down. That, on Radio 4’s More or Less a few weeks ago, I couldn’t answer the question how much learning had been lost, or what the impacts were on students, should be a source of deep national shame.

    Admitting the scale of the failure would’ve meant admitting the scale of what was owed. But instead we got a collective fiction that “blended learning” was comparable to what students had signed up for, that online education from bedroom prisons was a reasonable substitute for the university experience, that students complaining about quality were just being difficult. The investment in that fiction has been so total that even now, when the statutory inquiry is supposed to be learning lessons, it can’t examine what actually happened – because the evidence on impacts is so thin.

    Again and again

    It’s worth saying that everyone almost certainly did their best in impossible circumstances. From university staff pivoting to online teaching overnight, to SU officers running Zoom pub quizzes to combat isolation, to professional services teams working around the clock to support students in crisis – there were countless unsung heroes who made it all a little less miserable. Nobody wanted this. Nobody planned for it. Everyone was doing what they could with the resources and guidance available. And that deserves recognition.

    But the truth is that once students are paying individually for higher education – once it became a consumer market with £9,250 fees and interest-bearing loans and the language of student choice and value for money – doing your best isn’t enough. If you can’t deliver what was promised, “we tried our best” doesn’t cut it when someone is personally £50,000 in debt for the privilege.

    The hyper-marketisation of higher education came with consumer protections and Competition and Markets Authority guidelines and material information requirements precisely because students weren’t just participating in education anymore – they were purchasing it. Neither the sector nor the government can have it both ways. You can’t charge consumer prices and then claim education is special and different when it comes to consumer rights.

    You can make a reasonable case in other policy areas about whether central government or local authorities or devolved administrations or individual departments should be in charge of this budget or that decision. There are legitimate debates about the boundaries of autonomy and accountability, about who’s best placed to make decisions about housing or testing or public health interventions.

    But what I can’t get over – and what I don’t think we should let anyone forget – is the assumption that was there from the very beginning, baked into that March 2020 impact assessment and every decision that followed – that students would pay for pretty much everything that was done to them, and everything that wasn’t done for them.

    They’d pay full fees for reduced teaching. They’d pay rent on accommodation they were told not to use. They’d pay for support services that were closed. They’d pay for facilities they couldn’t access. They’d pay for an experience that bore no resemblance to what they’d signed up for. They’d pay for the privilege of being locked in their rooms, blamed for spreading a virus, threatened with fines and expulsion, excluded from the financial support available to everyone else, and told to be grateful that university was happening at all.

    And pay they did. While being gaslit about quality, lied to about protections, and blamed for their own misery.

    As Kate Ansty of the Child Poverty Action Group said in her oral evidence, to protect inside a pandemic, we must protect outside a pandemic. And as Sir John Cole said in his oral evidence, young people have played their part – society owes them a debt. Not the other way around.

    If another pandemic happens, or another national emergency that affects higher education, I fear that exactly the same mistakes will be made. We still won’t know who’s in charge. Government will still treat universities as simultaneously autonomous and controlled. It will still issue guidance too late for anyone to use it. It will still prioritise institutional finances over student welfare. It will still leave students excluded from support available to everyone else. We’ll still have regulators who can’t regulate.

    And students will still be blamed for the consequences of decisions made for them, about them, and without them.

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  • Applying the Moral Intensity Framework: Ethical Decision-Making for University Reopening During COVID-19

    Applying the Moral Intensity Framework: Ethical Decision-Making for University Reopening During COVID-19

    by Scott McCoy, Jesse Pietz and Joseph H Wilck

    Overview

    In late 2020, universities faced a moral and operational crisis: Should they reopen for in-person learning amid a global pandemic? This decision held profound ethical implications, touching on public health, education, and institutional survival. Using the Moral Intensity Framework (MIF), a multidimensional ethical decision-making model, researchers analysed the reopening choices of 62 US universities to evaluate the ethical considerations and outcomes. Here’s how MIF provides critical insights into this complex scenario.

    Why the Moral Intensity Framework matters

    The Moral Intensity Framework helps assess ethical decisions based on six dimensions:

    1. Magnitude of Consequences: The severity of potential outcomes.
    2. Social Consensus: Agreement on the morality of the decision.
    3. Probability of Effect: Likelihood of outcomes occurring.
    4. Temporal Immediacy: Time between the decision and its consequences.
    5. Proximity: Emotional or social closeness to those affected.
    6. Concentration of Effect: Impact on specific groups versus broader populations.

    This framework offers a structured approach to evaluate ethical trade-offs, especially in high-stakes, uncertain scenarios like the COVID-19 pandemic.

    Universities’ dilemma: in-person -v- remote learning

    The reopening debate boiled down to two primary considerations:

    1. Educational and Financial Pressures: Universities needed to deliver on their educational mission while addressing steep revenue losses from tuition, housing, and auxiliary services. Remote learning threatened educational quality and the financial viability of institutions, especially those with limited endowments.
    2. Public Health Risks: Reopening campuses risked COVID-19 outbreaks, jeopardising the health of students, staff, and surrounding communities. Universities also faced backlash for potential spread to vulnerable populations.

    Critical Findings Through the Moral Intensity Lens

    Magnitude of Consequences

    Reopening for in-person learning presented stark risks: potential illness or death among students, staff, and the community. However, keeping campuses closed threatened jobs, reduced education quality, and caused financial strain. The scale of harm from reopening was considered higher, particularly in densely populated campus settings.

    Social Consensus

    Public opinion and government policies influence decisions. States with stringent public health mandates leaned toward remote learning, while those with lenient regulations often pursued in-person or hybrid models. Administrators balanced community sentiment with institutional needs, highlighting the importance of localized consensus.

    Temporal Immediacy

    Health risks from in-person learning manifested quickly, while financial and educational setbacks from remote learning had longer timelines. This immediacy added ethical weight to public health considerations in reopening decisions.

    Probability of Effect

    The uncertainty surrounding COVID-19 transmission and mitigation complicated ethical judgments. Universities needed more data on the effectiveness of safety protocols, making probability assessments challenging.

    Proximity and Concentration of Effect

    Campus communities are close-knit, amplifying the emotional weight of decisions. Both reopening and remaining remote affected broad populations similarly, lessening these dimensions’ influence.

    Ethical Outcomes and Practical Mitigation Strategies

    Many universities implemented extensive safety measures to align reopening decisions with ethical standards:

    • Testing and Tracing: Pre-arrival testing, on-campus surveillance, and contact tracing reduced outbreak risks.
    • Modified Learning Environments: Hybrid and remote options ensured flexibility, accommodating vulnerable populations.
    • Health Protocols: Social distancing, mask mandates, and enhanced cleaning protocols were widely adopted.

    Despite risks, universities that reopened often avoided large-scale outbreaks, demonstrating the effectiveness of these measures.

    Lessons for Crisis Management

    The COVID-19 reopening experience offers valuable lessons for future crises:

    1. Use Multidimensional Ethical Frameworks: Applying tools like MIF provides structure to navigate complex moral dilemmas.
    2. Prioritize Stakeholder Engagement: Balancing diverse perspectives helps bridge gaps between perceived and actual risks.
    3. Adapt Quickly: Flexibility in implementing mitigation strategies can mitigate harm while achieving core objectives.
    4. Build Resilience: Strengthening financial reserves and digital infrastructure can reduce future vulnerabilities.

    Global Implications

    While this analysis focused on U.S. universities, the findings have worldwide relevance. Institutions globally grappled with similar decisions, balancing public health and education amid diverse cultural and political contexts. The Moral Intensity Framework offers a universal lens to evaluate ethical challenges in higher education and beyond.

    Conclusion

    The reopening decisions of universities during COVID-19 exemplify the intricate balance of ethical, financial, and operational considerations in crisis management. The Moral Intensity Framework provided a robust tool for understanding these complexities, highlighting the need for structured ethical decision-making in future global challenges.

    This blog is based on an article published in Policy Reviews in Higher Education (online 20 September 2024) https://www.tandfonline.com/doi/full/10.1080/23322969.2024.2404864.

    Scott McCoy is the Vice Dean for Faculty & Academic Affairs and the Richard S. Reynolds, Jr. Professor of Business at William & Mary’s Raymond A. Mason School of Business.  His research interests include human computer interaction, social media, online advertising, and teaching assessment.

    Jesse Pietz is a faculty lead for the OMSBA program at William & Mary’s Raymond A. Mason School of Business.  He has been teaching analytics, operations research, and management since 2013.  His most recent faculty position prior to William & Mary was at the U.S. Air Force Academy in Colorado Springs, Colorado. 

    Joseph Wilck is Associate Professor of the Practice and Business Analytics Capstone Director
    Kenneth W. Freeman College of Management, Bucknell University He has been teaching analytics, operations research, data science, and engineering since 2006. His research is in the area of applied optimization and analytics.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • China-U.S. animosity goes way back

    China-U.S. animosity goes way back

    The United States and China are increasingly at each other’s throats because of deep-seated distrust, a growing range of disputes and festering wounds from the 19th Century. The current deterioration in bilateral relations risks jeopardizing the global economy and could presage a new chapter in post-1945 great-power competition.

    Their mutual antagonism has not been deeper since U.S. President Richard Nixon embarked on a landmark trip to “Red China” in 1972 to pave the way to normalized relations.

    Ahead of the U.S. presidential election on November 3, disputes have flared over the handling of the coronavirus pandemic, Taiwan, the South China Sea, digital security, trade, journalist expulsions and human rights in Xinjiang, Hong Kong and Tibet.

    Some experts describe the rancor as verging on a “new Cold War”, with the potential to disrupt bilateral cooperation in the fight against COVID-19, climate change, terrorism and the spread of nuclear weapons.

    U.S. President Nixon in China

    Nixon traveled to China during the Cold War struggle between the United States and the former Soviet Union. The start of formal ties between China and the United States was a game-changer: the two had been on opposite sides during the Vietnam War, but each was at odds with Moscow.

    The trip set the stage for an effort to shape China’s strategic choices after the upheaval spurred by Chinese Communist Party Chairman Mao Zedong. Mao had sought to instill the spirit of China’s revolution in the younger generation during his tumultuous last decade in power (1966-76).

    Mindful that the two countries’ systems were radically at odds, Nixon said in his 1972 icebreaking toast in Beijing: “If we can find common ground to work together, the chance of world peace is immeasurably increased.”

    Nearly 50 years later, the relationship lies largely in tatters. Tensions have risen in recent days over self-ruled, U.S.-armed Taiwan, which China deems a breakaway province that must return to the fold. Taiwan scrambled fighter jets last week after Chinese aircraft buzzed the island in response to a visit by the highest-level U.S. State Department official in four decades.

    Washington and Beijing have entered into a fundamentally new phase of their relationship, and that strategic distrust between them is likely to intensify regardless of who wins this November’s presidential election,” Kurt Campbell, a former U.S. assistant secretary of state for East Asian and Pacific Affairs, and Ali Wyne of the Atlantic Council’s Scowcroft Center for Strategy and Security, wrote recently.

    Trump and Xi

    Analysts attribute the mounting friction to a more confrontational U.S. administration under U.S. President Donald Trump and a more assertive China under President Xi Jinping.

    Xi became General Secretary of the Chinese Communist Party in 2012 and added the state presidency in March 2013. Later in 2013, China began building military outposts in the contested South China Sea, and Xi launched the Belt and Road Initiative, a vast plan to build infrastructure links — and increase China’s influence — across the globe.

    The China-U.S. rift could put pressure on some nations to choose sides, as during the 1947-91 Cold War, or to tweak the hedging strategies that some have adopted to remain neutral.

    The path to warmer China-U.S. ties is very narrow, “as the required compromises go against the instincts of both countries’ current leaders,” Carnegie Asia research program’s Yukon Huang, a former World Bank country director for China, wrote this month in an analysis.

    Both Xi and Trump came to power with strong populist agendas, each vowing to return their countries to some vision of past greatness. Seeking reelection, Trump has accused his Democratic opponent, former Vice President Joe Biden, of being soft on China.

    “If Joe Biden becomes president, China will own the United States,” Trump said last month.

    COVID provocations

    Referring to COVID-19 by turns as “the China virus,” “Wuhan virus” and “Kung Flu,” Trump has faulted China for “secrecy, deceptions, and cover-up” in its handling of the disease that emerged in the central Chinese city of Wuhan late last year.

    “We must hold accountable the nation which unleashed this plague onto the world, China,” Trump said in taped remarks delivered to the United Nations General Assembly this week. More than 200,000 Americans have died from COVID-19, more than in any other country.

    Xi, in his address to the General Assembly, called for enhanced cooperation over the pandemic and said China had no intention of fighting “either a Cold War or a hot war with any country.”

    At home, Xi cannot afford to appear weak in the face of foreign demands, and he is bound to his signature “Great Chinese dream,” a drive for greater prosperity for the 1.3 billion Chinese, a larger role on the world stage and international respect consistent with China’s military, financial and economic influence.

    Beijing is angry over what it calls foreign provocations, including protests in Hong Kong it claims were stirred by outsiders, growing U.S. arms sales to Taiwan, visits by senior U.S. officials to Taipei and U.S. moves against Chinese companies including telecom giant Huawei and social media apps TikTok and WeChat.

    Hostility in diplomacy

    U.S. Secretary of State Mike Pompeo has stepped up criticism of the ruling Communist Party of China, which he says is seeking global hegemony.

    We must admit a hard truth that should guide us in the years and decades to come,” he said in a July 23 speech at Nixon’s boyhood home and library at Yorba Linda, California.

    “That if we want to have a free 21st century, and not the Chinese century of which Xi Jinping dreams, the old paradigm of blind engagement with China simply won’t get it done. We must not continue it and we must not return to it,” he said.

    Alluding to the 90 million-plus member Chinese Communist party, Pompeo added: “We must also engage and empower the Chinese people – a dynamic, freedom-loving people who are completely distinct from the Chinese Communist Party.”

    In Beijing’s eyes, the Trump administration has been meddling in Chinese internal affairs, threatening its core interests and leading efforts to contain China, which still smarts from what it calls “a century of humiliation,” largely at Western hands.

    “Century of National Humiliation”

    The “long century” of 110 years was marked by carve-ups of Chinese territory by Britain, the United States and other Western powers, as well as by Russia and Japan, from 1839 to 1949, when Mao’s Communist Party seized power after a five-year civil war.

    A trade war that roiled the world in 1839 pitted Britain against China’s Qing Dynasty. Britain had been buying silks, porcelain and tea from China. But Chinese consumers had scant interest in British-made goods, and Britain started running a significant trade deficit with China.

    To address the trade imbalance, British firms began illegally smuggling in Indian-grown opium, fueling drug addiction in China. The balance of trade soon turned in Britain’s favor, but a Chinese crackdown led to the first Opium War between Britain and China from 1839 to 1842.

    After defeating the Chinese in a series of naval conflicts, the British put a series of demands to the weaker Qing Government in what became the Anglo-Chinese Treaty of Nanjing. Not to be outdone, U.S. negotiators sought to conclude a similar treaty with the Chinese to guarantee the United States many of the favorable terms awarded the British, according to “Milestones in the History of U.S. Foreign Relations,” a U.S. State Department publication.

    Long underpinning the Chinese Communist Party’s hold on power have been inequitable treaties, lingering resentment over the earlier era’s losses and extraterritorial laws imposed on China.

    China learnt its lessons from this period of time,” Lu Jingxian, deputy editor of the state-controlled Global Times tabloid, wrote in a column last year. “Lagging leaves you vulnerable to bullying.”

    “Chinese people have walked out of the pathos of century of humiliation, though the West seemingly wants its century of bullying to continue,” he said.

    Meteoric rise

    China stunned the world with the depth and breadth of its economic growth after embracing market-based reforms in 1978, just before formal relations with the United States began in January 1979.

    It is now projected to supplant the United States as the world’s biggest economy by 2030 or 2040. Scholars consider the bilateral relationship to be the 21st Century’s most consequential for the international order.

    China’s meteoric rise began under Deng Xiaoping, who gradually rose to power after Mao’s death and earned the reputation as the architect of modern China. His market-oriented policies transformed one of the world’s oldest civilizations from crushing poverty to a modern powerhouse in military matters, finance, technology and manufacturing.

    China has become the world’s largest manufacturer, merchandise trader, holder of foreign exchange reserves, energy consumer and emitter of greenhouse gases.

    It became the world’s largest economy on a purchasing power parity basis in 2014, according to the McKinsey Global Institute.

    With economic growth averaging almost 10% a year since 1978, China has doubled its Gross Domestic Product every eight years and lifted an estimated 850 million people out of poverty, according to the World Bank.

    China is the largest foreign holder of U.S. Treasury securities, which help fund U.S. federal debt and keep U.S. interest rates low — reflecting the interdependence of the two economies.

    South China Sea

    Since Trump was elected in 2016, tensions have risen in the disputed, resource-rich South China Sea (SCS).

    They spiked in mid-July when the U.S. State Department for the first time formally opposed China’s claim to almost all of these waters, calling it “completely unlawful, as is its campaign of bullying to control them.”

    The United States will keep up the pace of its freedom of navigation operations in the SCS, which hit an all-time high last year, U.S. Defense Secretary Mark Esper said at the time.

    Four Southeast Asian states — Brunei, Malaysia, the Philippines and Vietnam — have maritime claims that conflict with China’s, as does Taiwan. An estimated $3.37 trillion worth of global trade passes through the SCS annually, which accounts for as much as a third of global maritime trade.

    Over the next 18 months, “a let-up in tensions is unlikely,” Ian Storey, co-editor of Contemporary Southeast Asia at Singapore’s ISEAS Yusof Ishak Institute, wrote in a recent survey of the dispute.

    “China and the United States will increase their military activities in the South China Sea, raising the risk of a confrontation,” regardless of who wins the U.S. presidential election, he said.

    Beijing’s actions in the region have strengthened a conviction on the part of some U.S. strategists that Beijing is seeking control of an area of strategic, political and economic importance to the United States and its allies.

    Taiwan

    The future of Taiwan, an island democracy of 23.6 million people, is a core concern for Beijing.

    Taiwan has been ruled separately since Chiang Kai-shek’s Nationalists fled there after losing the Chinese civil war in 1949. Beijing views Taiwan as sovereign territory that must eventually be unified with the mainland.

    Last month, Alex Azar, the U.S. Secretary of Health and Human Services, met President Tsai Ing-wen of Taiwan in the highest-level visit by a U.S. official since Washington cut formal ties to the island in 1979. As a condition for establishing bilateral relations with Beijing at the time, the United States committed to maintaining only unofficial relations with Taiwan.

    In a further poke at Beijing, a senior State Department official traveled to the island this month in another high-profile visit. The decision to send Keith Krach, Under Secretary of State for Economic Growth, Energy and the Environment, amounted to a rebuke of China’s efforts to isolate Taiwan.

    Chinese military drills off Taiwan’s southwest coast this month were a “necessary action” to protect China’s sovereignty, Beijing said on September 16, after Taiwan complained about large-scale Chinese air and naval drills.

    Hong Kong, Xinjiang

    Another rub has involved Hong Kong, a former British colony and a world financial center that was guaranteed a measure of autonomy by China as part of negotiations for its 1997 return from Britain.

    In May, Trump said he was taking steps to end Hong Kong’s preferential trading status with the United States after China enacted a harsh new security law. The law in effect rolls back the semiautonomous status that had been promised to Hong Kong by Beijing under the mantle of “one country, two systems.”

    In June, Beijing threatened retaliation after Trump signed legislation calling for sanctions against those responsible for repression of ethnic Uighurs and other Muslims in western China’s Xinjiang region. The U.S. State Department has accused Chinese officials of subjecting Muslims to torture, abuse and “trying to basically erase their culture and their religion.”

    Trump did not hold a ceremony to mark his signing of the legislation, which came as newspapers published excerpts from a new book by Trump’s former national security adviser John Bolton. Among other allegations, Bolton said Trump sought Xi’s help to win reelection during a closed-door 2019 meeting and that Trump said Xi should go ahead with building camps in Xinjiang.

    Trump and Xi have refrained so far from ad hominem personal attacks on each other, leaving a door ajar for possible one-on-one efforts to halt the deterioration in ties.


     

    Three questions to consider:

    1. Why have Chinese-U.S. relations spiraled downward?

    2. What are the main concerns of each country?

    3. What are the implications of the situation for the world?


     

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  • Decoder Replay: Bacteria doesn’t stop at the border

    Decoder Replay: Bacteria doesn’t stop at the border

    During the Covid pandemic, nations realized they needed to work together to keep their people safe. That’s where the World Health Organization comes in. 

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  • Enrollment Trending Upward After COVID-19

    Enrollment Trending Upward After COVID-19

    Title: Current Term Enrollment Estimates: Fall 2024

    Source: National Student Clearinghouse Research Center

    Total fall 2024 enrollment rose across multiple factors—including sector, selectivity, and urban-rural classification—bringing it closer to pre-pandemic levels, according to a new report from the National Student Clearinghouse Research Service. Compared to fall 2019, overall enrollment increased by 0.4 percent, and compared to fall 2023, it grew by 4.5 percent.

    Enrollment gains were particularly strong in associate programs (up 6.3 percent), bachelor’s programs (up 2.9 percent), master’s programs (up 3.3 percent), and doctoral programs (up 2.0 percent). Private for-profit four-year institutions saw the most significant increase in first-year enrollment, surging by 26.1 percent with more than 11,000 additional students. Public institutions also experienced notable growth, with primarily associate degree-granting baccalaureate institutions up 8.4 percent and public two-year institutions increasing by 6.8 percent.

    First-year enrollment overall grew by 5.5 percent, with the most significant gains among students from the lowest-income neighborhoods (up 9.4 percent). Enrollment increases were generally aligned with neighborhood income levels, with students from the highest-income areas seeing the smallest rise (3.6 percent).

    At Historically Black Colleges and Universities, enrollment increased at both the graduate (6.5 percent) and undergraduate (3.4 percent) levels. Meanwhile, public four-year institutions in rural areas experienced the largest enrollment growth (5.6 percent), while public two-year institutions saw the biggest increases in towns (7.9 percent). Urban areas continued to enroll the most students at public two-year institutions, surpassing 2.3 million.

    Patterns of growth varied across selectivity and sector. Less selective private nonprofit four-year institutions saw the most substantial gains (5.7 percent), with similar increases at less selective public four-year institutions (5.0 percent). Enrollment at highly selective institutions followed a different trend, rising at public four-year institutions (2.9 percent) but declining at private nonprofit institutions (-2.5 percent).

    Regionally, enrollment increased at similar rates in the Northeast, South, and West (4.7 percent each) and rose by 3.1 percent in the Midwest. Utah led the nation in enrollment growth (12.1 percent), while the District of Columbia (-1.9 percent), Vermont (-0.6 percent), and Nebraska (-0.4 percent) saw declines. Graduate enrollment patterns diverged in some areas, with notable decreases in Mississippi (-4.3 percent), Delaware (-3.9 percent), and Missouri (-3.4 percent).

    Fields of study also showed shifts, with undergraduate enrollment in health professions rising 8.3 percent—effectively reversing pandemic-related declines. Among the top 20 major fields, only two saw decreases: Liberal Arts and Sciences, General Studies, and Humanities (-3.1 percent) and English Language and Literature/Letters (-1.5 percent).

    This data provides an encouraging outlook for higher education. Understanding who is enrolling and where is essential for institutional planning and for ensuring equitable access to higher education.

    To explore the data, click here. For the methodology, click here.

    —Erica Swirsky


    If you have any questions or comments about this blog post, please contact us.

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  • HR and the Courts — September 2023 – CUPA-HR

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Unionization Increases to Record Levels, Largely Driven by Graduate Students and Medical Interns

    Unionization in the first six months of 2023 reached near record levels, surpassing last year’s numbers, which were driven by Starbucks employees’ organization drives. In the first six months of 2023, over 58,000 new workers were unionized, almost 15,000 more than last year’s significant levels. The size of new bargaining units has grown, with new units of 500 or more employees growing by 59% over last year. In the first six months of 2023, unions won 95% of elections in large units of over 500 employees compared to 84% in the first six months of 2022.

    According to a Bloomberg Law report, this increase coincides with a growth in graduate assistant and medical intern organizing. There have been union organization elections in 17 units involving graduate students and medical interns in the first six months of 2023. This is the highest level of activity in the sector since the 1990s.

    Court of Appeals Rejects Religious Discrimination Claim by Fire Chief Who Was Terminated After Attending a Religious Event on “City Time”

    The 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) rejected a former fire chief’s allegation of religious discrimination after he attended a church-sponsored Christian leadership event in place of attending a non-religious leadership training program he was asked to attend (Hittle v. City of Stockton, California (2023 BL 268076, 9th Cir. 22-15485, 8/4/23)). The court concluded that the fire chief’s supervisors were legitimately concerned about the constitutional implications of a city official attending a church-sponsored event.

    The fire chief claimed, as evidence of religious discrimination, that city supervisors questioned whether his attendance at the event was part of a “Christian Coalition.” He further alleged that the supervisors questioned whether he was part of a “Christian clique.” The court rejected the fire chief’s arguments that this questioning amounted to religious bias against Christians. The court concluded that the questioning was related to the report they received on his attendance at the church-sponsored event. The court noted that the supervisors did not use derogatory terms to express their own views. The case may be appealed to the Supreme Court, and we will follow developments as they unfold.

    University Wins Dismissal of Federal Sex Harassment Lawsuit for Failure of Professor to File a Timely Underlying Charge of Sex Harassment With the EEOC

    Pennsylvania State University won a dismissal of a male ex-professor’s federal sex harassment lawsuit alleging a female professor’s intolerable sex harassment forced him to resign. The Federal Court concluded that the male professor never filed a timely charge with the EEOC (Nassry v. Pennsylvania State University (M.D. Pa. 23-cv-00148, 8/8/23)). The plaintiff professor argued he was entitled to equitable tolling of the statute of limitations because he attempted to resolve the matter internally as opposed to “overburdening the EEOC.”

    The court commented that while the plaintiff’s conduct was “commendable,” the court was unable to locate any case where a plaintiff was bold enough to offer such a reason to support equitable tolling. The court dismissed the federal case, holding that there was no way to conclude the plaintiff professor was precluded from filing in a timely manner with the EEOC due to inequitable circumstances. The court dismissed the related state claims without prejudice as there was no requirement that the state claims be filed with the EEOC.

    Professor’s First Amendment Retaliatory-Discharge Case Over Refusal to Comply With COVID-19 Health Regulations Allowed to Move to Discovery

    A former University of Maine marketing professor who was discharged and lost tenure after refusing to comply with COVID-19 health regulations on the ground that they lacked sufficient scientific evidentiary support is allowed to move forward with discovery. The university’s motion to dismiss was denied (Griffin V. University of Maine System (D. Me. No. 2:22-cv-00212, 8/16/23)).

    The court held “for now” the professor is allowed to conduct discovery to flush out evidence of whether or not the actions which led to the termination were actually protected free speech. The court concluded that the actual free speech question will be decided after more facts are unearthed.

    U.S. Court of Appeals Reverses Employer-Friendly “Ultimate Employment Decision” Restriction on Actionable Title VII Complaints

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed the long standing, 27-year-old precedent restricting Title VII complaints to those only affecting an “ultimate employment decision.” The employer-friendly precedent allowed the courts to dismiss Title VII complaints not rising to the level of promotion, hiring, firing and the like. The 5th Circuit now joins the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and the D.C. Circuit (covering Washington, D.C.) in holding that a broader range of employment decisions involving discrimination are subject to Title VII jurisdiction.

    The 5th Circuit case involved a Texas detention center which had a policy of allowing only male employees to have the weekend off. The 5th Circuit reversed its prior ruling dismissing the case and allowed the case to proceed. This reversed the old “ultimate employment decision” precedent from being the standard as to whether a discrimination case is subject to Title VII jurisdiction.

    Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations

    The U.S. Department of Labor has proposed revised regulations that would allow union representatives to accompany OSHA inspectors on inspections. The regulations, which were first proposed during the Obama administration, were stalled by an adverse court order and then dropped during the Trump administration.

    The proposed rule would drop OSHA’s current reference to safety engineers and industrial hygienists as approved employee reps who could accompany the inspector. The new rule would allow the OSHA inspector to approve any person “reasonably necessary” to the conduct of a site visit. Among the professions that could be approved are attorneys, translators and worker advocacy group reps. The public comment period on these proposed regulations will run through October 30, 2023.



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  • HR and the Courts — June 2023 – CUPA-HR

    HR and the Courts — June 2023 – CUPA-HR

    by CUPA-HR | June 7, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    NLRB Issues a Formal Complaint Alleging College Football and Basketball Players Are Employees and Can Petition to Unionize 

    The NLRB regional director in Los Angeles issued a long-awaited formal complaint alleging that the NCAA, Pac-12, and The University of Southern California all violated the National Labor Relations Act (NLRA) when they refused to treat college basketball and football players as employees under the NLRA. The regional director agreed with the legal conclusion the NLRB general counsel made last December and issued a formal complaint against the three parties. The NLRB regional director is alleging that all three entities are joint employers of these athletes and violated the NLRA by misclassifying them as “non-employee student athletes” (Univ. of Southern California (NLRB Reg Dir Case No. 31-CA-290326, complaint issued 5/18/23)).

    If the NLRB ultimately prevails on all counts, the outcome could lead to unionization of college basketball and football players at both public and private college and universities in the U.S. While the NLRB has no jurisdiction over public institutions, it does have jurisdiction over the private NCAA and various private athletic conferences it alleges are joint employers of these athletes. Needless to say, this will be a heavily contested and lengthy litigation event.

    U.S. Supreme Court Holds That Unions Can Be Held Liable in State Court for Intentional Destruction of Employer Property During a Strike

    In an 8-1 decision, the U.S. Supreme Court held that the Teamsters Union could be held liable for intentional destruction of  employer property during a strike and that the victimized employer could sue the union in state court alleging such intentional infliction of damages (Glacier Northwest Inc. v. Teamsters Local 174 (U.S. No. 21-1449, 6/1/23)). The case had been dismissed under the long-held Supreme Court decision in the Garmon case, holding that the National Labor Relations Act (NLRA) preempted state court litigation against labor unions.

    The Supreme Court created a narrow exception to Garmon’s federal preemption, holding that, “far from taking reasonable precautions to mitigate foreseeable danger to employer property … the union executed the strike designed to compromise the safety of the employer’s trucks and product.” The court concluded that such union conduct is not even arguably protected by the NLRA.

    Here the union called a strike of concrete truck drivers and intentionally instructed the drivers to return their trucks, loaded with concrete, to the employer rather than complete the delivery. This resulted in the concrete hardening in the trucks, leading to the destruction of trucks and concrete product.”

    EEOC Publishes Updated Guidance on the End of the COVID-19 Public Health Emergency 

    On May 15, the EEOC updated its technical assistance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance covers a variety of issues related to the end of the public health emergency. While the publication notes that some pandemic-related reasonable accommodations may cease, accommodations for employees with long COVID may continue to be necessary. The guidance contains tips to help employers avoid COVID-related harassment of applicants or employees who need to take precautions because of a disability.

    University Prevails on First Amendment Grounds in Defamation Action Brought by Former Professor

    A Louisiana state appeals court dismissed a defamation action brought by a former professor against the university as a result of the student newspaper publishing allegedly defamatory statements concerning the professor. The student newspaper articles concerned racism allegations. The court of appeals dismissed the case, holding that the newspaper articles constituted speech on matters of public interest protected by the First Amendment. The court also noted that the articles concerned “a high profile individual” (Duhe v. Loyola University of New Orleans (La. Ct. App. 5th Cir. No. 22-C-292, 5/30/23)).

    State-Based Initiatives Restricting or Banning DEI Policies Have Passed or Are in the Legislative Pipeline in More Than 12 States — State-Based Legal Challenges Likely to Ensue

    Florida and North Dakota have become the first states to restrict DEI programs and/or training at public higher ed institutions. Arizona, Tennessee and more than 12 other states are considering such measures. It is likely that these initiatives will be subject to continuing litigation in multiple states. Faculty unions at some public, state-based systems may argue that these restrictions violate existing collective-bargaining provisions. The state of the law in this area is rapidly changing and subject to different turns depending on how different state courts deal with these issues prospectively. We will continue to follow state law developments and will keep CUPA-HR members apprised in this monthly column.

    University Defeats Transgender Detective’s Sex Bias, Promotion Lawsuit — Failure to Identify a Similarly Situated Non-Protected-Class Employee 

    A judge in the U.S. District Court for the Southern District of Florida recently dismissed a Title VII claim filed by a transgender detective alleging sex discrimination under Title VII for failure of the university  to promote. The federal judge dismissed the case, concluding that the plaintiff failed to identify a similarly situated non-protected-class employee who was treated more favorably (Ponce v. Florida Atlantic University Board of Trustees (2023 BL 162924, S.D. Fla. No. 9:22-cv-81546, 5/12/23)).

    The judge dismissed the lawsuit without prejudice to the plaintiff refiling the lawsuit to appropriately allege a similarly situated non-protected-class employee who was treated more favorably.

    State Laws Requiring Pay Ranges to be Part of Job Postings and Ads Are Growing 

    New York, California, Washington and Colorado have already enacted laws requiring pay ranges to be listed in job postings and ads. Specifics should be discussed with local counsel in those jurisdictions.

    Illinois, Michigan, Oregon, New Jersey, Connecticut, Rhode Island, Massachusetts and Hawaii  have bills either pending in the state legislature or before the governor awaiting signature. Specifics vary by state, but the trend is to force employers to be more transparent in job postings and ads.

    Public University Registered to Do Business Out of State Is Subject to Out-of-State Sex-Harassment Litigation — Sovereign Immunity Defense Rejected

    The U.S. Supreme Court has denied the petition by a public university located in Alabama to appeal the divided decision of the North Carolina Supreme Court which allowed the university to be subject to a sex-harassment suit filed in North Carolina (Troy University V. Farmer (U.S. No.  22-787, cert denied, 5/30/23)).

    The Supreme Court denied the university’s appeal of the adverse decision of the North Carolina Supreme Court, which held that the university’s registration to do business in North Carolina and its operation of an office for commercial activities in Fayetteville, North Carolina, was enough to subject it to the jurisdiction of the North Carolina courts. Specifically, the North Carolina court held that the agreement that the university signed, which allowed it to do business in the state, contained an agreement to sue and be sued in the state. The North Carolina court held that this waived the university’s sovereign immunity.



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  • HR and the Courts – October 2022 – CUPA-HR

    HR and the Courts – October 2022 – CUPA-HR

    by CUPA-HR | October 4, 2022

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    University’s Internal Investigation of Pay Equity Claims Protected By Attorney-Client Privilege — EEOC Fails In Attempt to Require Disclosure of Documents 

    A federal district court judge recently rejected the Equal Employment Opportunity Commission (EEOC)’s demand that a university turn over 54 documents related to an internal investigation the university conducted by inside and outside counsel concerning pay equity claims made by an athletic department employee who claimed she was paid approximately $37,000 less annually than a similarly situated male employee. The court rejected the EEOC’s argument that the investigation was conducted by the institution’s EEO office and did not involve seeking legal advice (Equal Employment Opportunity Commission v. George Washington University (2022 BL 308648, D.D.C., No. 1:17-cv-01978. 9/1/22)). The court ruled that the investigation and all related documents are protected by the attorney-client privilege.

    The court concluded that the university did not waive privilege by asserting good faith compliance with federal law as a defense to the EEOC’s claim for punitive damages. The court added that the university does not intend to use the documents in question in proving the good faith defense.

    Failure to Renew a Coach’s Discretionary Contract May Be an Actionable Adverse Employment Action Subject to a Title IX Retaliatory Termination Claim

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii) recently ruled that failure to renew a golf coach’s contract may be an adverse employment action subject to a Title IX retaliation claim (Macintyre v. Carroll College (9th Cir., No. 21- 35642, 9/8/22)). The plaintiff was hired as an assistant golf coach in 2006, promoted to head golf coach in 2007 and appointed associate athletic director in 2013. His contract was subject to renewal at the discretion of the college.

    The plaintiff became aware of what he thought was an improper disparity in the amount the college spent on men’s versus women’s athletic programs. He concluded that the college was out of compliance with applicable Title IX mandates. He alleges that after raising these issues with the interim athletic director and the Title IX coordinator he received negative performance reviews for the first time. He filed a grievance alleging discrimination. In settling the matter, he was given a two-year contract to be head golf coach. At the end of the two-year period his contract was not renewed. His current action alleges that the non-renewal was in retaliation for his raising Title IX concerns.

    The court, in ruling that the case should go forward, concluded that this non-renewal might be an adverse employment action and might deter employees from reporting discrimination.

    California Appeals Court Rules That Remote Work Due to COVID-19 Can Broaden Where Employees May Sue for Job Bias

    A California appellate court recently ruled that the COVID-19 pandemic and technological advances have changed the way people work. The court went on to hold that the venue provisions of the California Fair Employment and Housing Act were meant to remove barriers for suing for job discrimination. Therefore, the “modern reality” of work means that an employee who was fired while on pregnancy leave at her home in Los Angeles County can sue there rather than in Orange County where the employer was located (Malloy v. Superior Court of Los Angeles County ( 2022 BL 330038 Cal. St. App 2nd Dist, 9/19/22)).

    The court concluded that allowing remote workers to sue where they worked or would have worked effectuates the purposes of the Act. The case involved a demand by the plaintiff’s employer that she return to the physical office after her pregnancy leave had ended. After the plaintiff was fired for not coming back to work, the plaintiff sued under the California statute for pregnancy and sex discrimination and sex harassment, interference with her family and medical leave rights, and retaliation for trying to exercise her family and medical leave rights. The plaintiff also included a claim for wrongful termination in violation of public policy.

    California Moves Toward Requiring Employers to Prove Impairment Before Terminating an Employee for Cannabis Use

    In another California development which may spread to other states, the governor signed a new law which goes into effect on January 1, 2024 that prohibits employers from discriminating against employees who use cannabis during off-duty hours. Commentators conclude that this gives California employers 15 months to develop an accurate test on whether an employee is impaired at the job after smoking marijuana or consuming cannabis-infused snacks before firing them or otherwise disciplining an employee for marijuana use. The dilemma is that scientists conclude that there is currently no accurate test that determines impairment form using marijuana or cannabis products.

    Cosmetology Students and School Both Win Partial Summary Judgement on Claims That Students Should Be Paid For Work Completed as Part of School-Supervised Job Training

    A federal court in Michigan ruled in favor on summary judgement on some of the claims brought by cosmetology students that they should be paid for work performed as part of their course obligations to engage in supervised on-the-job training. The cosmetology school also won partial summary judgement regarding some of the tasks for which the student made wage claims (Eberline v. Douglas J. Holdings, Inc. (2022 BL 332583, E.D. Mich. Partial Summary Judgement 9/22/22)).

    The court divided the student tasks for which pay was claimed into three categories, namely client services, janitorial tasks and retail sales. The court held that there was no genuine dispute of facts on who was the primary beneficiary of client services tasks, ruling that the students were the primary beneficiary in this area, therefore granting partial summary judgement to the school. Similarly, the court ruled that there was no genuine dispute of facts on who was the primary beneficiary of janitorial tasks, ruling that the school was the primary beneficiary, therefore granting partial summary judgement to the students. Finally, the court ruled that there is a genuine dispute of facts on who is the primary beneficiary of retail sales tasks, thus ruling that this area must be given to a jury to decide.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | February 9, 2022

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    U.S. Supreme Court to Review Harvard and UNC Affirmative Action Admission Policies In Consolidated Case 

    The U.S. Supreme Court agreed to hear and review two cases challenging the affirmative action admissions policies at Harvard University and the University of North Carolina. The Supreme Court will hear an hour of argument over both court of appeals decisions, which have concluded that the respective affirmative action plans were legal. In the past, the Supreme Court has consistently ruled that college and university admission related affirmative action plans were legal since 1978 in the Bakke decision.

    The composition of the Supreme Court has changed significantly since the last time it ruled that affirmative action in college admissions was legal in 2018 in the University of Texas at Austin case. The argument will be heard in the October 2022 term with a decision likely to be made in 2023. CUPA-HR will follow and report on future developments.

    Court of Appeals Allows a Former Teaching Assistant’s Complaint Alleging Male Bias In Title IX Investigation to Proceed 

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Nevada, Idaho, Montana and Arizona) ruled that a former Chinese national teaching assistant — who lost his job and student visa to stay in the U.S. after a Title IX investigation found that he was in violation of the school’s dating guidelines — can proceed with his own Title IX suit against the university, alleging that the investigation was biased against him as a male (Doe v. University of California (9th Cir. No. 20-55831. 1/11/22)). The plaintiff, who had prevailed in a state court proceeding challenging the disciplinary decision, nonetheless lost his housing, job, student visa and the ability to complete his doctorate.

    The plaintiff had broken off his engagement to a student who he was dating after learning she had been unfaithful to him. She came unannounced to his office, confronted him and blocked his exit when he said he had to leave to teach a class. The plaintiff eventually got around the student to leave, but the student called the campus police claiming that he pushed her and grabbed her arm, and she filed a Title IX complaint. During the investigation, an investigator told the plaintiff, “No female had ever fabricated allegations against a former boyfriend in a Title IX setting.” The plaintiff also alleged that during the two-year time period, the overwhelming majority of Title IX claims were against males and that no female was ever given a two-year suspension in circumstances like his. The court of appeals concluded that given these facts, the plaintiff’s claims should proceed to trial.

    NLRB General Counsel Reiterates Call for NLRB to Issue Make-Whole Remedies, Including Emotional Distress Damages for Employer Unfair Labor Practice Violations

    Jennifer Abruzzo, the Biden administration appointee as general counsel to the National Labor Relations Board (NLRB), has reiterated her request that the NLRB expand its remedy policies for employer violations of the National Labor Relations Act’s unfair labor practice provisions, including discrimination against union members, to include “make-whole” remedies, which would include emotional distress damages. The general counsel announced her initial request in September 2021. Abruzzo followed up the September 2021 request in a legal brief filed with the NLRB on January 10, 2022 arguing that the NLRB remedies are “feeble” and allow employer’s to violate the Act because it is cheaper do so without facing the consequence of make-whole remedies.

    Current NLRB remedies are limited to employment reinstatement, back pay awards and posting of notices that the employer violated the Act. Business groups filed a brief on January 10, 2022, which also opposes the general counsel’s request, arguing that the NLRB lacks authority under the Act to impose make-whole remedies. CUPA-HR will follow this litigation and report the result in a future blog post.

    U.S. Supreme Court Will Hear Football Coach’s First Amendment Claim of Protected Mid-Field Prayer Denied By the Ninth Circuit Court of Appeals 

    The U.S. Supreme Court has granted certiorari (cert) and will hear an appeal of a Washington state football coach whose claim to a First Amendment right to kneel and pray at the 50-yard line after each game was denied by the Ninth Circuit (covering California, Oregon, Washington, Arizona, Nevada, Montana and Idaho) (Kennedy v. Bremerton School District (U.S. No. 21-418, cert granted 1/14/22)). The Bremerton School District suspended the coach after he refused to cease his weekly ritual of kneeling and praying at the 50-yard line after each game. The Ninth Circuit denied the First Amendment claim, holding that the coach’s public statements about his prayer activities belied his argument that is was a private religious act and evidenced his attempts to proselytize his religious beliefs. As such, allowing it to continue would violate the school district’s/government’s duty not to support any particular religion.

    The coach argued that the decision, if left standing, would virtually transform speech of a public employee into government speech, lacking any First Amendment protection. The school district argued against cert, claiming that it had given the coach an accommodation to pray before or after the game in the press box or anywhere else where he would not be surrounded by his team. The coach insisted on being able to pray at mid-field before the team and spectators had cleared the field. CUPA-HR will follow this case and report on the ultimate decision.

    COVID-19 Spousal Death May Be a Way Around Workers’ Compensation Defense to Employer Liability for Some COVID-19 Cases Contracted at Work 

    A California appellate court recently refused to dismiss a case filed by an employee who claimed her husband contracted and died of COVID-19, which she contracted from working on the employer’s assembly line (See’s Candies, Inc. v. Superior Court of L.A. County (2021 BL 485084, Cal. Ct. App. 2nd Dist. No. B312241,12/21/21)). The appeals court rejected the company’s argument that the husband’s death was a “derivative” injury of the employee’s injury/illness contracted at work and therefore barred by the workers’ compensation prohibition of individual lawsuits. This is a new area of the law and the cases popping up elsewhere may come to a different result. CUPA-HR will follow the issue as case law develops.

    U.S. Union Membership Among American Workers Declines to Record Low in 2021

    The percentage of American workers who are union members declined to 10.3 percent in 2021 to match its record low percentage of 2019. While union membership increased in 2020, the percentage dropped 0.5 percent in 2021 to the 2019 percentage according to the U.S. Department of Labor’s Bureau of Labor Statistics. In 2021, the number of union members declined to 14 million while the number of overall workers increased. The percentage of American workers who are union members has declined significantly since 1984 when approximately 20 percent of the U. S. workforce was unionized.



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  • Supreme Court Blocks OSHA Vaccine and Testing ETS and Upholds CMS Healthcare Worker Vaccine Mandate – CUPA-HR

    Supreme Court Blocks OSHA Vaccine and Testing ETS and Upholds CMS Healthcare Worker Vaccine Mandate – CUPA-HR

    by CUPA-HR | January 14, 2022

    On January 13, the U.S. Supreme Court blocked enforcement of the Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS) that would mandate vaccines or testing requirements for employers with 100 or more employees, but reinstated enforcement of the Centers for Medicare and Medicaid Services (CMS)’s mandate that would require COVID-19 vaccinations for healthcare workers working at facilities that participate in Medicare and Medicaid.

    In December, the U.S. Court of Appeals for the 6th Circuit vacated the 5th Circuit Court’s nationwide emergency motion to stay the OSHA ETS, paving the way for OSHA to continue enforcement of the ETS vaccine and testing requirements. The decision led several business groups and Republican-led states to file emergency applications with the Supreme Court seeking to reinstate the stay. The Supreme Court heard oral arguments on the OSHA mandate on January 7, leading to the court’s decision to block the vaccine and testing mandate.

    Additionally, the Supreme Court heard oral arguments on the CMS healthcare worker mandate on January 7. They ultimately ruled in favor of allowing the CMS healthcare worker vaccine mandate to take effect while the mandate is being litigated in several U.S. district courts and circuit courts. The CMS mandate was previously stayed in 25 states after four lawsuits were filed against CMS in district courts in Missouri, Louisiana, Florida and Texas.

    Though not heard or ruled on by the Supreme Court, the federal contractor vaccine mandate, which requires all federal contractors to mandate COVID-19 vaccinations for their employees, remains stayed by the U.S. District Court for the Southern District of Georgia, which issued a nationwide preliminary injunction against the mandate on December 7. The Biden administration has appealed the decision to the 11th Circuit Court, which has since upheld the lower court’s injunction but has not yet ruled on the legal merits of the mandate. Litigation continues for this rule in the 11th Circuit Court.

    The Supreme Court’s decisions bring the rules back to the lower courts to continue litigation on their merits; however, the recent decisions do signal how the Supreme Court would likely rule on the merits of the cases if they are once again appealed to the higher court.

    CUPA-HR will continue to keep members apprised of any legal updates as they relate to the fate of the OSHA ETS, the CMS healthcare vaccine mandate, and the federal contractor vaccine mandate.



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