Speaking at an event in Glasgow this week, John Swinney blasted the UK’s “disastrous” decision to leave the European Union, but suggested a new migration route specifically for students who choose to study in Scotland.
“Twenty years ago, the Scottish and UK governments worked together to launch a tailored migration route designed to enable international students to stay in Scotland after they graduated,” he said. “I see no reason why this cannot happen again.”
Under the plans, designed to keep highly skilled graduates in the country, the Scottish Graduate Visa would be linked to a Scottish tax code and be issued on the understanding that recipients would live and work in Scotland.
But despite Swinney’s assurances that he was “ready to work with” Downing Street on making the proposal a reality, his idea already appears to have been rebuffed by the UK government.
A government spokesperson quoted by The Evening Standard indicated that there were “no plans” for a new Scottish visa, citing the UK’s Graduate Route already in place that allows international students to stay in the country for up to two years after they graduate.
In his speech, Swinney said a new Scottish Graduate Visa would benefit not only the country’s institutions but its economy after international students’ graduation, highlighting that this group contributes £4.75 billion a year.
“In small but important ways, it would make our economy more robust, and our public services more sustainable. It would play a part in making our communities more prosperous,” he said.
In small but important ways, it would make our economy more robust, and our public services more sustainable John Swinney, Scottish first minister
Pointing out that Scotland’s projected population is expected to dip for the next two generations, Universities Scotland convener Paul Grice highlighted the benefits a Scottish Graduate Visa could bring the country and said he hoped the proposal would “progress in a meaningful way”.
“It would be enormously helpful if a policy space could be created between governments to consider greater regional variation of migration within an overall UK framework,” he said.
“Inward migration will be essential to Scotland’s future and there is a really positive opportunity for Scotland’s universities, as magnets for the attraction and retention of highly-skilled people, to help deliver this as a win-win for the sector and Scotland as a whole. There is a lot to like in this outline proposal.”
Although it does not appear to welcome the idea of a Scottish Graduate Visa for the time being, the UK government seems to be embracing international students.
This week, education secretary Bridget Phillipson recorded a video message to international students in the UK promoting the country’s post-graduation work opportunities.
Rachel
Oglesby most recently served as America First Policy Institute’s Chief
State Action Officer & Director, Center for the American Worker. In
this role, she worked to advance policies that promote worker freedom,
create opportunities outside of a four-year college degree, and provide
workers with the necessary skills to succeed in the modern economy, as
well as leading all of AFPI’s state policy development and advocacy
work. She previously worked as Chief of Policy and Deputy Chief of Staff
for Governor Kristi Noem in South Dakota, overseeing the implementation
of the Governor’s pro-freedom agenda across all policy areas and state
government agencies. Oglesby holds a master’s degree in public policy
from George Mason University and earned her bachelor’s degree in
philosophy from Wake Forest University.
Jonathan Pidluzny – Deputy Chief of Staff for Policy and Programs
Jonathan
Pidluzny most recently served as Director of the Higher Education
Reform Initiative at the America First Policy Institute. Prior to that,
he was Vice President of Academic Affairs at the American Council of
Trustees and Alumni, where his work focused on academic freedom and
general education. Jonathan began his career in higher education
teaching political science at Morehead State University, where he was an
associate professor, program coordinator, and faculty regent from
2017-2019. He received his Ph.D from Boston College and holds a
bachelor’s degree and master’s degree from the University of Alberta.
Chase Forrester – Deputy Chief of Staff for Operations
Virginia
“Chase” Forrester most recently served as the Chief Events Officer at America First Policy Institute, where she oversaw the planning and
execution of 80+ high-profile events annually for AFPI’s 22 policy
centers, featuring former Cabinet Officials and other distinguished
speakers. Chase previously served as Operations Manager on the
Trump-Pence 2020 presidential campaign, where she spearheaded all event
operations for the Vice President of the United States and the Second
Family. Chase worked for the National Republican Senatorial Committee
during the Senate run-off races in Georgia and as a fundraiser for
Members of Congress. Chase graduated from Clemson University with a
bachelor’s degree in political science and a double-minor in Spanish and
legal studies.
Steve Warzoha – White House Liaison
Steve
Warzoha joins the U.S. Department of Education after most recently
serving on the Trump-Vance Transition Team. A native of Greenwich, CT,
he is a former local legislator who served on the Education Committee
and as Vice Chairman of both the Budget Overview and Transportation
Committees. He is also an elected leader of the Greenwich Republican
Town Committee. Steve has run and served in senior positions on numerous
local, state, and federal campaigns. Steve comes from a family of
educators and public servants and is a proud product of Greenwich Public
Schools and an Eagle Scout.
Tom Wheeler – Principal Deputy General Counsel
Tom
Wheeler’s prior federal service includes as the Acting Assistant
Attorney General for Civil Rights at the U.S. Department of Justice, a
Senior Advisor to the White House Federal Commission on School Safety,
and as a Senior Advisor/Counsel to the Secretary of Education. He has
also been asked to serve on many Boards and Commissions, including as
Chair of the Hate Crimes Sub-Committee for the Federal Violent Crime
Reduction Task Force, a member of the Department of Justice’s Regulatory
Reform Task Force, and as an advisor to the White House Coronavirus
Task Force, where he worked with the CDC and HHS to develop guidelines
for the safe reopening of schools and guidelines for law enforcement and
jails/prisons. Prior to rejoining the U.S. Department of Education, Tom
was a partner at an AM-100 law firm, where he represented federal,
state, and local public entities including educational institutions and
law enforcement agencies in regulatory, administrative, trial, and
appellate matters in local, state and federal venues. He is a frequent
author and speaker in the areas of civil rights, free speech, and
Constitutional issues, improving law enforcement, and school safety.
Craig Trainor – Deputy Assistant Secretary for Policy, Office for Civil Rights
Craig
Trainor most recently served as Senior Special Counsel with the U.S.
House of Representatives Committee on the Judiciary under Chairman Jim
Jordan (R-OH), where Mr. Trainor investigated and conducted oversight of
the U.S. Department of Justice, including its Civil Rights Division,
the FBI, the Biden-Harris White House, and the Intelligence Community
for civil rights and liberties abuses. He also worked as primary counsel
on the House Judiciary’s Subcommittee on the Constitution and Limited
Government’s investigation into the suppression of free speech and
antisemitic harassment on college and university campuses, resulting in
the House passing the Antisemitism Awareness Act of 2023. Previously, he
served as Senior Litigation Counsel with the America First Policy
Institute under former Florida Attorney General Pam Bondi, Of Counsel
with the Fairness Center, and had his own civil rights and criminal
defense law practice in New York City for over a decade. Upon graduating
from the Catholic University of America, Columbus School of Law, he
clerked for Chief Judge Frederick J. Scullin, Jr., U.S. District Court
for the Northern District of New York. Mr. Trainor is admitted to
practice law in the state of New York, the U.S. District Court for the
Southern and Eastern Districts of New York, and the U.S. Supreme Court.
Madi Biedermann – Deputy Assistant Secretary, Office of Communications and Outreach
Madi
Biedermann is an experienced education policy and communications
professional with experience spanning both federal and state government
and policy advocacy organizations. She most recently worked as the Chief
Operating Officer at P2 Public Affairs. Prior to that, she served as an Assistant Secretary of Education for Governor Glenn Youngkin and worked
as a Special Assistant and Presidential Management Fellow at the Office
of Management and Budget in the first Trump Administration. Madi
received her bachelor’s degree and master of public administration from
the University of Southern California.
Candice Jackson – Deputy General Counsel
Candice
Jackson returns to the U.S. Department of Education to serve as Deputy
General Counsel. Candice served in the first Trump Administration as
Acting Assistant Secretary for Civil Rights, and Deputy General Counsel,
from 2017-2021. For the last few years, Candice has practiced law in
Washington State and California and consulted with groups and
individuals challenging the harmful effects of the concept of “gender
identity” in laws and policies in schools, employment, and public
accommodations. Candice is mom to girl-boy twins Madelyn and Zachary,
age 11.
Joshua Kleinfeld – Deputy General Counsel
Joshua
Kleinfeld is the Allison & Dorothy Rouse Professor of Law and
Director of the Boyden Gray Center for the Study of the Administrative
State at George Mason University’s Scalia School of Law. He writes and
teaches about constitutional law, criminal law, and statutory
interpretation, focusing in all fields on whether democratic ideals are
realized in governmental practice. As a scholar and public intellectual,
he has published work in the Harvard, Stanford, and University of
Chicago Law Reviews, among other venues. As a practicing lawyer, he has
clerked on the D.C. Circuit, Fourth Circuit, and Supreme Court of
Israel, represented major corporations accused of billion-dollar
wrongdoing, and, on a pro bono basis, represented children accused of
homicide. As an academic, he was a tenured full professor at
Northwestern Law School before lateraling to Scalia Law School. He holds
a J.D. in law from Yale Law School, a Ph.D. in philosophy from the
Goethe University of Frankfurt, and a B.A. in philosophy from Yale
College.
Hannah Ruth Earl – Director, Center for Faith-Based and Neighborhood Partnerships
Hannah
Ruth Earl is the former executive director of America’s Future, where
she cultivated communities of freedom-minded young professionals and
local leaders. She previously co-produced award-winning feature films as
director of talent and creative development at the Moving Picture
Institute. A native of Tennessee, she holds a master of arts in religion
from Yale Divinity School.
StatsCan dropped some college financial data over the XMAS holidays. I know you guys are probably sick of this subject, but it’s still good to have some national data—even if it is eighteen months out of date and doesn’t really count the last frenzied months of the international student gold rush (aka “doing the Conestoga”). But it does cover the year in which everyone now agrees student visa numbers “got out of control,” so there are some interesting things to be learned here nonetheless.
To start, let’s look quickly at college income by source. Figure 1, below, shows that college income did rise somewhat in 2022-23, due mainly to an increase in tuition income (up 35% between the nadir COVID year of 20-21 and 22-23). But overall, once inflation is taken into account, the increase in college income really wasn’t all that big: about a billion dollars in 2021-22 and about the same again in 2022-23, or about 6-7% per year after inflation. Good? Definitely. Way above what universities were managing, and well above most sectors internationally? But it’s not exactly the banditry that some communicators (including the unofficial national minister of higher education, Marc Miller) like to imply.
Figure 1: College Income by Source, Canada, 2017-18 to 2022-23, in Billions of $2022
Now I know a few of you are looking at this and scratching your heads, asking what the hell is going on in Figure 1. After all, haven’t I (among others) made the point about record surpluses in the college sector? Well, yes. But I’ve only ever really been talking about Ontario, which is the only province where international tuition fees have really taken flight. In Figure 2, I put the results for Ontario and for the other nine provinces side-by-side. And you can see how different the two are. Ontario has seen quite large increases in income, mainly through tuition fees and by ancillary income bouncing back to where it was pre-COVID, while in the other nine provinces income growth is basically non-existent in any of the three categories.
Figure 2a/b. College Income by Source, Ontario vs Other Nine Provinces, 2017-18 to 2022-23, in Billions of $2022
(As an aside, just note here that over 70% of all college tuition income is collected in the province of Ontario, which is kind of wild. At the national level, Canada’s college sector is not really a sector at all…their aims, goals, tools, and income patterns all diverge enormously.)
Figure 3 drills down a little bit on the issue of tuition fee income to show where they have been growing and where they have not. One might look at this and think its irreconcilable with Figure 2, since tuition fees in the seven smaller provinces seem to be increasing at a rate similar to Ontario. What that should tell you, though, is that the base tuition from which these figures are rising are pretty meagre in the seven smallest provinces, and quite significant in Ontario. (Also, remember that in Ontario, domestic tuition fees fell by over 20% or so after inflation between 2019-20 and 2022-23, so this chart is actually underplaying the growth in international fees in that province a bit.)
Figure 3: Change in Real Aggregate Tuition Income by Province, 2017-18 to 2022-23, (2017-18 = 100)
Now I want to look specifically at some of the data with respect to expenditures and to try to ask the question: where did that extra $2.2 billion that the sector acquired in 21-22 and 22-23 (of which, recall, over 70% went to Ontario alone) go?
Figure 4 answers this question in precise detail, and once again the answer depends on whether you are talking about Ontario or the rest of the country. The biggest jump in expenditures by far is “contracted services” in Ontario—an increase of over $500M in just two years. This is probably as close a look as we will ever get at the economics of those PPP colleges that were set up around the GTA since most of this sum is almost certainly made up of public college payments to those institutions for paying the new students had arrived in those two years. If you assume the increase in international students at those colleges was about 40,000 (for a variety of reasons, an exact count on this is difficult), then that implies that colleges were paying their PPP partners about $12,500 per student on average and pocketing the difference, which would have been anywhere between about $2,500 and $10,000, depending on the campus and program. And of course, most of the funds spent on PPP were spent one way or another on teaching expenses for these students.
Figure 4: Change in Expenditures/Surplus, Canadian Colleges 2022-23 vs 2020-21, Ontario vs. Other 9 Provinces, in millions of 2022
On top of that, Ontario colleges threw an extra $300 million into new construction (this is a bit of an exaggeration because 2020-21 was a COVID year and building expenses were abnormally low), and an extra $260 million (half a billion in total) thrown into reserve funds for future years. This last is money that probably would have ended up as capital expenditures in future years if the feds hadn’t come crashing in and destroying the whole system last year but will now probably get used to cover losses over the next year or two instead. Meanwhile, in the rest of Canada, surpluses decreased between 2020-21 and 2022-23, and such spending increases as occurred came mostly under the categories “miscellaneous” and “ancillary enterprises.”
2022-23 of course was not quite “peak international student” so this analysis can’t quite tell the full story of how international students affected colleges. We’ll need to wait another 11 months for that data to show up. But I doubt that the story I have outlined based on the data available to date will not change too much. In short, the financials show that:
Colleges outside Ontario were really not making bank on international students.
Within Ontario, over a third of the additional revenue from international students generated in the 2020-21 to 2022-23 period was paid out to PPP partners, who would have spent most of that on instruction.
Of the remaining billion or so, about a third went into new construction and another 20% was “surplus,” which probably meant it was intended for future capital expenditure.
The increase in core college salary mass was miniscule—in fact only about 3% after inflation.
If there was “empire building” going on, it was in the form of constructing new buildings, not in terms of massive salary rises or hiring sprees.
The Albanese government is preparing to replace a controversial ministerial direction that has been criticised for favouring sandstone universities over regional and outer-suburban institutions, as providers warn Labor’s “confused and mismanaged” policy approach is damaging the sector and the economy.
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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.
Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize
The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.
Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.
Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.
Student-Athlete Employee Status Could Lead to Student Visa Problems
The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.
Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.
Union Membership and Strike Activity Rose Dramatically in 2023
Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.
The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.
SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California
A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).
SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.
The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.
Employer Risk Associated With Targeting Remote Workers for Termination
Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.
Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments
An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.
The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.
The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.
NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan
A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.
The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.
