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  • Higher Education Inquirer : Robocolleges 2025

    Higher Education Inquirer : Robocolleges 2025

    Overall, enrollment numbers for online robocolleges have increased as full-time faculty numbers have declined. Four schools now have enrollment numbers exceeding 100,000 students.  

    Here’s a breakdown of the key characteristics of robocolleges:

    • Technology-Driven: Robocolleges heavily utilize online platforms, pre-recorded lectures, automated grading systems, and limited human interaction.
    • Focus on Profit: These institutions often prioritize generating revenue over providing a high-quality educational experience.
    • Aggressive Marketing: Robocolleges frequently employ aggressive marketing tactics to attract students, sometimes with misleading information.
    • High Tuition Costs: They often charge high tuition fees, leading to significant student debt.
    • Limited Faculty Interaction: Students may have limited access to faculty members for guidance and support.
    • Questionable Job Placement Rates: Graduates of robocolleges may struggle to find employment in their chosen fields.

    Concerns:

    • Student Debt Crisis: The high tuition costs and potential for low job placement rates contribute to the student debt crisis.
    • Quality of Education: The emphasis on technology and limited human interaction can raise concerns about the quality of education students receive.
    • Ethical Considerations: The aggressive marketing tactics and potential for misleading students raise ethical concerns.

    Here are Fall 2023 numbers (the most recent numbers) from the US Department of Education College Navigator:

    Southern New Hampshire University: 129 Full-Time (F/T) instructors for 188,049 students.*
    Grand Canyon University 582 F/T instructors for 107,563 students.*
    Liberty University: 812 F/T for 103,068 students.*
    University of Phoenix: 86 F/T instructors for 101,150 students.*
    University of Maryland Global: 168 F/T instructors for 60,084 students.
    American Public University System: 341 F/T instructors for 50,187 students.
    Purdue University Global: 298 F/T instructors for 44,421 students.
    Walden University: 242 F/T for 44,223 students.
    Capella University: 168 F/T for 43,915 students.
    University of Arizona Global Campus: 97 F/T instructors for 32,604 students.
    Devry University online: 66 F/T instructors for 29,346 students.
    Colorado Technical University: 100 F/T instructors for 28,852 students.
    American Intercontinental University: 82 full-time instructors for 10,997 students.
    Colorado State University Global: 26 F/T instructors for 9,507 students.
    South University: 37 F/T instructors for 8,816 students.
    Aspen University 10 F/T instructors for 5,195 students.
    National American University 0 F/T instructors for 1,026 students

    *Most F/T faculty serve the ground campuses that profit from the online schools.

    Related links:

    Wealth and Want Part 4: Robocolleges and Roboworkers (2024) 

    Southern New Hampshire University: America’s Largest Robocollege Facing Resistance From Human Workers and Student Complaints About Curriculum (2024)

    Robocolleges, Artificial Intelligence, and the Dehumanization of Higher Education (2023)

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  • Education Department staffers suspended over DEI training

    Education Department staffers suspended over DEI training

    Dozens of Education Department employees were notified Friday that they’d been put on paid administrative leave following President Trump’s executive order to root out diversity, equity and inclusion initiatives in the federal government. At least some of them received the notices because of their participation in a voluntary session on diversity training, NBC News reported, noting they were encouraged to do so by Trump’s first-term education secretary, Betsy DeVos. 

    Department staffers sent the memos they’d gotten to their American Federation of Government Employees local union, Politico reported over the weekend. The union subsequently said that attendees of a two-day 2019 training for the department’s “Diversity Change Agent Program” had received the notices.

    The “change agents” who participated in the program were supposed to lead DEI training and education in the agency while working to attract and retain talent. The union said DeVos’s goal was to have 400 employees participate, though it’s unclear how many did.

    The suspended staffers were told that the “administrative leave is not being done for any disciplinary purpose.” NBC News reported that the affected employees included “a public affairs specialist, civil rights attorneys, program manager analysts, loan regulators and employees working to ensure schools accommodate special needs children with individualized education programs.” 

    The notices arrived one week after the Education Department rolled out a press release touting its “Action to Eliminate DEI.” That action included putting employees in charge of DEI  programs on paid leave and canceling more than $2.6 million in training and service contracts. The department characterized it as “the first step in reorienting the agency toward prioritizing meaningful learning ahead of divisive ideology in our schools.”

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  • Big state systems were among those announcing cuts in January

    Big state systems were among those announcing cuts in January

    A new year is underway, but many colleges are still reeling from the fiscal challenges of 2024.

    With yawning budget gaps and bleak financial projections at some campuses, administrators are cutting jobs, academic programs and athletics options to plug holes and stabilize their finances.

    Here’s a look at cuts announced in January.

    Sonoma State University

    Facing a budget deficit estimated at nearly $24 million, the California State University campus is enacting deep cuts that will include dismissing dozens of faculty members, eliminating multiple programs and dropping athletics, according to an announcement from interim president Emily F. Cutrer.

    “The University has had a budget deficit for several years. It is attributable to a variety of factors—cost of personnel, annual price increases for supplies and utilities, inflation—but the main reason is enrollment,” Cutrer wrote in an announcement last month.

    She added that Sonoma State’s enrollment has dropped by 38 percent since 2015.

    On the personnel side, 46 faculty members, including tenured as well as adjunct professors, will not have their contracts renewed for the next academic year. An unspecified number of lecturers will also receive notices that “no work will be available in fall 2025,” Cutrer wrote. Four management and 12 staff positions are also being eliminated as part of Sonoma State’s cost-cutting measures.

    In addition, more than 20 programs have been identified for closure and others will be combined. University officials are also looking to close a half dozen academic departments.

    All 11 SSU athletic programs, which compete at the NCAA Division II level, will be eliminated. However, SSU coaches have announced plans to file a lawsuit in an effort to save their sports.

    California State University, Dominguez Hills

    Anticipated budget cuts also drove layoffs at this CSU campus in Southern California, which let go 32 employees last month, many probationary or temporary workers, LAist reported.

    “While these layoffs will be disruptive to our operations, the vast majority of our staff will remain employed at CSUDH continuing to provide the high level of support to our community that we are known for,” President Thomas Parham wrote in an email.

    Other institutions across California are also likely to introduce cost-cutting measures in the coming months due to anticipated decreases in state appropriations that will limit funding. The 23 institutions in the CSU system are bracing for state budget cuts of nearly $400 million.

    University of New Orleans

    After consolidating five colleges into two in December, the University of New Orleans laid off 30 employees last month as it chips away at a $10 million budget deficit, NOLA.com reported.

    Additionally, the university announced furloughs for full-time, nontenured employees last month, which local media outlets reported will affect nearly 300 workers.

    “While these actions are necessary, we are deeply sensitive to the hardship they undoubtedly will cause. We remain fully committed to supporting those who are affected through this transition,” President Kathy Johnson said in a January announcement. “Our focus remains on protecting UNO’s academic mission and its vital role in the New Orleans region. We are pursuing long-term strategies to increase enrollment, secure new funding, and enhance operational efficiency to avoid similar measures in the future.”

    St. Francis College

    The financially struggling institution in New York laid off 17 employees last month, The City reported. It follows other moves administrators have made in recent years—including previous layoffs, the sale of the Brooklyn campus and the elimination of athletic programs—to help fix St. Francis’s financial woes.

    Despite the institution’s recent struggles and multiple years of operating losses, President Tim Cecere offered the news outlet an optimistic outlook, noting that cost-cutting measures have put the college on a path toward sustainability.

    “The college hasn’t been this strong in years,” Cecere said. “We have zero debt, which not a lot of colleges can say. Every dollar that comes in is optimized for the benefit of the students.”

    St. Norbert College

    Jobs and programs are on the chopping block as the small Catholic institution in Wisconsin navigates financial issues, The Green Bay Press Gazette reported.

    At least 13 majors will be cut, including chemistry, computer science, history and physics.

    An unspecified number of faculty members are also expected to be laid off, the newspaper reported, as the college aims to shave $7 million in expenses ahead of the next fiscal year.

    Cleveland State University

    Efforts to cut spending prompted Cleveland State University to drop three athletic programs—wrestling, women’s softball and women’s golf—Ideastream Public Media reported.

    Cleveland State will also move its esports team from athletics to the College of Engineering.

    The move comes as the university whittles down a budget deficit that reportedly stands at $10 million. Last summer 50-plus faculty members took buyouts as part of cost-reduction efforts.

    Indiana University

    More than two dozen jobs were eliminated from the state flagship’s athletics department last month—part of a cost-reduction effort in response to the House v. NCAA settlement, which will require IU and other institutions to begin sharing revenue with athletes starting in the 2025–26 academic year, The Indianapolis Star reported.

    Of the 25 positions eliminated, 12 were reportedly vacant.

    Western Illinois University

    Furloughs for administrative employees who are not in a bargaining unit are expected as the regional public institution seeks to cut expenditures, Tri States Public Radio reported.

    WIU is reportedly dealing with a $14 million deficit for fiscal year 2025.

    The furlough program will run from the beginning of February through July 31 and is tiered by annual salary. Administrators making more than $150,000 will be required to take three unpaid days off each month, while those earning between $100,000 and $149,000 will be asked to take off two unpaid days each month and those making $99,999 to $75,000 will have to take off one unpaid day per month.

    Catholic University of America

    With the Catholic research university in Washington, D.C., facing a $30 million structural deficit, administrators are considering merging departments and potentially closing the Benjamin T. Rome School of Music, Drama, and Art, Catholic News Agency reported.

    Officials did not specify publicly whether job cuts would be included as part of the overall changes, which are expected to go before CUA’s Board of Trustees for approval in March.

    University System of Maryland

    Amid state budget cuts, Maryland’s public university system will likely be forced to lay off employees.

    Anticipating a funding cut of $111 million across the 11-campus system, officials may eliminate as many as 400 jobs through layoffs as well as closing vacant positions, The Baltimore Banner reported, which they estimate will save $45 million. Though a timeline for cuts was not announced, system chancellor Jay Perman said some jobs will be student facing, including advising, counseling and mental health services. Perman also noted that some faculty positions across the system will likely go unfilled.

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  • College leaders in the foxhole (opinion)

    College leaders in the foxhole (opinion)

    The second Trump administration has begun with a cacophony of executive orders, memos from the Office of Management and Budget, and the disconcerting disappearance—and some reappearance—of research grants and programs. This has led to fear of the loss of important federal data, threats to the livelihoods of researchers and students, and the end of critical programs that have enabled greater participation in science. Many of these actions are being litigated in the courts, and while some judges have helped stop the worst actions, the whiplash leads to more drama and uncertainty. The research community on college campuses has been left in a state of anxiety and confusion.

    The public response from college presidents has been mostly muted so far. While this is causing even more distress in some quarters, there are reasons for it. The administration has suggested that on top of the current actions, there are prospects for increasing the tax on large university endowments, cutting indirect cost recovery on federal grants, investigating students and institutions for antisemitism, and more. It’s no surprise that university presidents, general counsels, communications professionals and federal relations officials want to play it safe. Many of these leaders probably also feel constrained by their commitments to institutional neutrality and don’t want to be seen as taking a political position against the administration’s actions.

    And so higher education is in yet another crisis. This one affects the whole country, just like the 2008 financial crisis and the pandemic. Former Tulane University president Scott Cowen faced a unique local crisis after Hurricane Katrina and also navigated the pandemic as interim president at Case Western Reserve University. He has been justifiably praised as an outstanding crisis manager, bringing Tulane through an event that easily could have permanently devastated the institution. He said on this site that—both after Hurricane Katrina in New Orleans and during COVID-19 in Cleveland—frequent, emotionally transparent communication was crucial to lower anxiety and provide updated information.

    “Crises are bound to happen,” he said, “impacting a few people or everyone. How we lead through them depends in large part on the nature of the crisis. And when one strikes, a leader should first understand how that particular crisis makes them feel” (emphasis mine).

    We don’t need to wonder about how people feel this time. The current crisis is definitely making people on campuses anxious and afraid. A few presidents have heeded Cowen’s advice and made public statements, including Christina Paxson at Brown University, Maurie McInnis at Yale University and Kevin Guskiewicz at Michigan State University. These statements have all acknowledged the pain and anxiety on the campuses. All three of these presidents are quite experienced: Paxson has been in office at Brown for 12 years, and McInnis and Guskiewicz are both in their second executive positions.

    Paxson perhaps went the farthest in taking a stand. “We always follow the law,” she said. “But we are also prepared to exercise our legal right to advocate against laws, regulations or other actions that compromise Brown’s mission.” That would be a difficult statement to make at a public university in a red state—and is still quite a courageous one at a private one in Rhode Island.

    Other presidents have made similar statements, and as the situation grinds on, more will continue to do so, particularly as it becomes apparent that this is not something to be waited out but rather to be managed and adapted to. Nearly every college president cares first and foremost about their campus; when they don’t show it, it’s usually because they think doing so would cause more damage in the long run. My heart goes out to all of the officials who for two weeks—and for many weeks to come—have had long early-morning and late-night meetings trying to figure out what they can and cannot do or say. Being in the foxhole late at night with your team and college town takeout can be energizing at first, but as it continues, it gets very difficult, especially as the days start to blur and it’s hard to remember whether you’ve already decided something or not.

    I went through two crises myself as chancellor of University of North Carolina at Chapel Hill. I followed Cowen’s advice on the first one, the 2008 financial crisis; I had seen him present on what he did at Tulane at my first presidents’ meeting. I sent out frequent emails to the campus with the help of a very sharp communications colleague who helped me craft my voice for such times. I went to employee meetings and answered all the questions I could. I hugged people when appropriate and let them share their emotions. As an autistic person, I don’t always know when emotions are in the air, but this was a dire enough situation that I didn’t need to do a lot of interpreting. We got through it, and I felt even more connected to the campus when we did.

    In the second crisis, which was a local scandal involving UNC athletics, I started off on the right foot by famously apologizing to “everyone who loves this university” at the first press conference. It seemed a logical continuation of what had gotten me through my first crisis, and it was consistent with what I had learned from Cowen. But the reaction was very different. While much of the campus appreciated it, the sports fans ridiculed me for being apologetic and not having a “stiffer spine” when it came to fighting for athletics. To my literal brain, this meant they wanted me to say it was acceptable that we cheated. I should have ignored that, because it caused me to lose my voice for a year or more, during which I just looked tongue-tied and indecisive while the scandal grew. As with the current situation, I was worried that saying anything would lead to more investigations and penalties for the Tar Heels. Finally, a wise adviser told me that I needed to decide who my people were. The people on the campus—the students, staff and faculty—those were my people. The sports fans were not; I can’t make a layup to save my life. “Stick to your people,” he said. I eventually got my voice back and happily went off to a Division III university.

    As the current crop of presidents goes through this same process, they’ll begin sticking with their people, too. Like me, many of them will end up wishing they did it sooner, but that’s to be expected given the stress and tension. In the long run, we need leaders who can lead the academic community to the other side of this. And that doesn’t always mean overt “resistance” as we often hear calls for, although as Paxson said in her letter, it certainly does mean standing up for the academic freedom of the individuals on the campus. It also means understanding the situation, caring for the people under their charge who are affected, helping them grieve for what is being lost and leading a conversation about how higher education is going to adapt to the new realities without sacrificing our values. I believe those leaders will emerge.

    As McInnis said at Yale, “Our mission is to create, share and preserve knowledge; to educate and inspire students; and to apply our discoveries to address the world’s greatest challenges. We are committed to navigating these times with a steadfast focus on advancing that mission and on supporting members of our community.” Most of the college leaders who read this and don’t think they can say something like it are wishing they could. In the coming weeks, more will.

    In the meantime, the academic community needs to stick together and try not to get overwhelmed by responding to everything that comes along while also acknowledging the fear, loss and pain many are experiencing. Teaching, patient care, research, justice and opportunity have defined American higher education for a century. And, somehow, they will continue.

    Holden Thorp is the editor in chief of the Science family of journals. He previously served as the chancellor of the University of North Carolina at Chapel Hill and the provost of Washington University in St. Louis.

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  • Seven strategies to build global learning community at scale

    Seven strategies to build global learning community at scale

    In higher education, your relationship with learners shouldn’t end when their program does. If fostered correctly, they’re applying the knowledge they gained, sharing their experiences with their personal and professional networks, and staying engaged with your institution.

    Strengthening your relationships post-program will not only enhance the learning experience and create a sense of belonging, but inspire lifelong learning and repeat engagement, build awareness in a competitive education landscape, and transform your learners into your brand’s biggest advocates.

    Building a vibrant community is vital for maintaining these post-program relationships. In a survey by the community marketing platform TINT, 73 percent of consumers reported having a positive opinion of brand communities, while 84 percent said the community surrounding a brand impacts their feelings about it.

    Many online learning providers must battle the misperception that community-building and networking only happen in person. At Harvard Business School Online, we launched our Community in 2018 to provide online learners the chance to connect off-line by forming chapters worldwide. Over the last six years, we’ve expanded to nearly 40 chapters and more than 650,000 members from 190 countries. And importantly, we’ve evolved beyond in-person meetups to also host virtual events and discussions through our Community platform.

    If you’re interested in building a global community at scale, here are seven tips to consider.

    Tips for Building an Engaged Global Community

    1. Find Your Superusers Early

    Start by identifying your most active, engaged learners. Perhaps they’re always the first to comment on their peers’ responses and provide feedback. Or maybe they’re sharing their certificate and learning experiences on LinkedIn, taking multiple programs, or promoting your school and proactively addressing questions in Reddit threads. Determine your engagement metrics and use them to spot your superusers early.

    Programs should offer multiple connection points throughout the experience. HBS Online offers networking opportunities before, during and after courses. Anyone can join a public chapter to learn more about the brand and build knowledge. Once enrolled and upon course completion, they’re added to different private discussion boards and gain access to exclusive networking opportunities.

    The earlier you integrate community into their experience, the faster they’ll become familiar with it and the more engaged they’ll be over the long term—helping you more easily surface your superusers.

    1. Transform Your Superusers Into Brand Ambassadors

    Communities are stronger when everyone is involved. Once you’ve identified your superusers, empower them to be brand ambassadors. Provide ownership of the community experience to keep them invested and committed to fueling its success. In turn, you can scale faster by delegating some of the event and community management.

    Our chapters are run by chapter organizers—volunteers who’ve taken at least one HBS Online course and been vetted by our team. These volunteers are responsible for hosting an event a quarter and posting on their chapter’s discussion board.

    This structure enables us to grow our Community globally and offer in-person and virtual events and networking opportunities throughout the year. Our learners forge real-world connections while our chapter organizers gain experience they can add to their LinkedIn profiles and résumés.

    1. Provide Them With Helpful Tools, Training and Tactics

    To help your learners become brand ambassadors, equip them with the right tools, tips and training. Onboard them to your community software, develop documentation and responses to frequently asked questions, and regularly host training sessions to explain new and existing platform features.

    Data is another powerful tool. Track which conversations garner the most engagement or the events with the highest registrations, and share those insights with your community leaders. It will provide a jumping-off point and help them build stronger networking opportunities and relationships.

    1. Establish and Share Clear Guidelines

    During onboarding, share clear brand guidelines and expectations with your community leaders, including:

    • Your community’s goals and objectives
    • What their role entails and how to refer to it
    • How they should attribute your brand, and if/when they can leverage your logo
    • Your social channels and any campaign hashtags
    • Examples of effective content, whether a social post, forum discussion or event
    • Specific brand style guidelines

    By providing this material, you can empower them to be stronger advocates and alleviate branding concerns as you grow and scale your community.

    1. Highlight Achievements and Incentivize Advocacy

    For your community to be successful, it needs to be mutually beneficial. Your learners are likely juggling their education alongside various personal and professional commitments. Acknowledge their time spent volunteering.

    At HBS Online, we share our praise in various ways, including dedicated learner profiles, Community engagement and recognition badges, social media callouts, a monthly Community-focused newsletter where we promote upcoming events and achievements, and free tickets to and dedicated recognition at our annual hybrid learner conference, Connext.

    Consider how you can leverage gamification to encourage engagement or incentivize your community leaders to promote your brand. Perhaps you gift them exclusive swag if they hit certain engagement metrics or welcome them to beta-test new products. Determine what works best for your institution, but ensure you’re meaningfully saying, “Thank you.”

    1. Give Your Community Meaning

    Purpose fuels passion. Find ways to make your community something your learners are proud to participate in. Survey them to discover how they view your community and the value they derive from it and leverage those insights to create programming aligned with your institution’s mission.

    Six years ago, HBS Online introduced the Community Challenge to empower our learners to enact global change. Through the challenge, we collaborate annually with a nonprofit and ask for a pressing issue facing their business. We then share that problem with our learners, who gather worldwide to develop and pitch solutions. Over the years, they’ve tackled topics like food insecurity, climate change and education access while applying the business knowledge gained through our courses and fostering teamwork globally.

    1. Create an Internal Support System

    For any of these community efforts to take off, you need buy-in from senior leadership. Without it, you’re unlikely to get the necessary tools and resources to grow an engaged community. Communicate the value to your institution’s key stakeholders and provide them with the talking points to advocate for the initiative organizationwide since you’ll need support from multiple teams—like tech, program delivery and marketing—to make this work possible.

    If feasible, having a dedicated community manager can also help supercharge your efforts. That employee can provide a safe space for your community leaders, give them a direct point of contact, listen to and enact feedback, and ensure brand guidelines and expectations are met.

    Build Lifelong Relationships

    Your learners are your higher education brand’s most valuable asset. They can provide insights to help you develop new programs, advocate on your brand’s behalf, build awareness and drive repeat engagement.

    To foster lifelong learning, you must prioritize building lifelong relationships. Is your institution missing out on a competitive advantage?

    Lauren Landry is the director of marketing and communications at Harvard Business School Online, overseeing its organic marketing strategy, brand messaging, Community and events. Prior to joining HBS Online, she served as an associate director of content marketing at Northeastern University and as a reporter and editor covering higher education and start-ups for the likes of BostInno and Boston Magazine.

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  • It’s not too late to fix the Renters’ Rights Bill

    It’s not too late to fix the Renters’ Rights Bill

    • By Calum MacInnes, Chairman of the Student Accredited Private Rental Sector (SAPRS).

    Today, the Renters’ Rights Bill will undergo its Second Reading in the House of Lords. This far-reaching Bill is long overdue. Once it becomes law, it will deliver a much-needed overhaul of private rented sector regulation in England.

    With the Bill, the Labour Government has a huge opportunity to deliver a rental market that is fairer and improves housing quality for the millions of renters in the UK.

    However, at present, the Government is blind to the woes of one particular group of renters: students.

    Students risk being hit by a ‘double whammy’ of increased tuition fees and the financial impact the Renters’ Rights Bill will have, shortening student housing supply even further and making it more expensive.

    The Bill’s passage through the Lords presents a vital opportunity to ensure the Bill delivers an overhaul of the private rented sector. As one of the most vulnerable groups of renters particularly affected by high costs of living, the legislation must consider students and the unique nature of the student private rented sector. The concerns about student welfare in the rental market appear to resonate with the wider public: New research commissioned by SAPRS (Student Accredited Private Rental Sector), a coalition of second- and third-year student accommodation providers across Britain, has found that a majority (66%) of the British public believe that the Government does not care about students.

    They are an important group of voters, in particular for the Labour Party, and the Government risks alienating them. Students will remember, and Keir Starmer might receive payback at the next General Election’s polling station.

    HEPI and higher education organisations like Universities UK have previously rightly warned the legislation threatens the availability, affordability, and quality of student housing as the sector is already at crisis point.

    As part of the Bill, the Government plans to end fixed-term tenancy agreements (FTTAs) ignoring the special case that is student housing. Student housing relies on cyclical FTTAs that have successfully balanced student and landlord needs by aligning with university term times and ensuring landlords have security of tenure each year. By dismantling this model, the Bill risks reducing housing availability, creating uncertainty for students and disrupting the cyclical rental market.

    There is an easy solution, and it is not too late for the Government to listen to the sector and students and to fix the Bill. On the issue of fixed-term tenancies, the Bill must create parity between the student private rental and the purpose-built sector – anything else risks exacerbating the existing crisis.

    Our proposed SAPRS code of conduct would establish standards of conduct and practice for the management of the student private rental distinct from the purpose-built sector, aimed at creating a framework of standards to facilitate effective and fair treatment of students. 

    An exemption along these lines is already included in the Bill for the purpose-built sector; there is no clear reason why the same exemption should not apply to private rentals, and the Government has so far refused to spell out a convincing reason.

    If the Bill is not changed, the Government will miss a vital opportunity to deliver a better deal for students – and risk punishing an important part of its electorate.

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  • Honesty and accuracy is about to get even more important

    Honesty and accuracy is about to get even more important

    Businesses selling to consumers – and yes, that includes universities selling courses to students – need to comply with new rules, or face heavy fines.

    The Digital Markets, Competition and Consumers Act (DMCC Act) was passed back in May 2024, but isn’t set to come into force until the autumn.

    In the meantime the Competition and Markets Authority (CMA) has been running a consultation on the detail of the act and its extensive new fining and enforcement powers, and the Advertising Standards Authority (ASA)’s Committee of Advertising Practice (CAP) has been consulting over amendments to its codes.

    There could be some pretty significant implications for universities – especially when it comes to international (and, increasingly, domestic) agent activity, and for the way in which courses are promoted and sold, and changes implemented as cuts rain down on provision across the sector.

    Even typing the word “consumer”, let alone referencing the detail of consumer protection law, can be like catnip to some – but in the continued absence of a set of rights bespoke to the relationship between student and university, it’s the framework that applies whether folk like the nomenclature or not.

    And in reality, once you remove the word “consumer”, it’s hard to argue with most of what’s in here unless you’re keen that higher education providers be able to mislead students signing up for 3-4 year course and an up to 40 year commitment to pay for it.

    All along they could see

    The first aspect that catches the eye surrounds omissions of material information. Previously an omission was only considered unfair if it both met the definition of “material information” and demonstrably influenced a consumer’s decision. The new rules remove the dual burden – so if material information – like course content, fee structures, or additional costs – is omitted in an invitation to purchase (e.g., a prospectus or offer letter), the omission is deemed inherently unfair, and there’s no longer a requirement to prove that the omission led to a changed decision. Information gaps now carry automatic compliance risks.

    If, for example, a university fails to disclose that core modules (or a pathway of optional ones) will only be available at a particular campus, a student might enrol under the impression that they can study all aspects of their course on the main campus, only to find out after enrolment that they need to travel to another city. Under the previous rules, this could have been debated based on whether the omission was truly significant to the student’s decision. Now, the omission would likely be considered unfair without further discussion.

    There are plenty of OIA decisions, for example, that seem to rest on whether a student actually experienced detriment.

    Similarly, a university might promote a programme as offering “access to industry-standard facilities.” However, if students later discover that access is heavily restricted to certain hours or that equipment must be booked weeks in advance, this could be considered a misleading practice. In the past, universities could have argued that the promotional wording was reasonable marketing. Ambiguity or exaggeration are the problem now.

    A university might outline tuition fees clearly but neglect to inform students about additional costs, like charges for field trips or specialist equipment. This could now be deemed a serious breach because these costs represent material information – and while in the past a university might have argued that failing to mention a minor fee did not affect a student’s decision to enrol, that defence is no longer viable.

    There’s plenty of students who, in the past, have tried to challenge a misleading or incomplete disclosure only to be asked to demonstrate that it caused significant harm or confusion in their decision-making. Now, they can raise complaints without needing to prove the degree of impact. Crucially given the cuts context, a student who accepts an offer without being informed that certain modules are being (or are likely to be) phased out could now make a decent case.

    I was blind to the truth

    Professional diligence is about the standard of skill, care, and honesty that a university is expected to demonstrate in its dealings with students and applicants.

    We’re talking transparency (clear communication of key information about courses, fees, terms, and conditions), care (ensuring that processes like admissions, marketing, and complaint handling are conducted in a manner that is fair, accurate, and sensitive to the needs of students), and prevention of exploitation (practices that take unfair advantage of students’ lack of knowledge, experience, or specific vulnerabilities.)

    Under the old regime, breaches of professional diligence had to be proven to cause “material distortion” of consumer decision-making. In practical terms, this theoretically meant (and you’ll see a pattern here) that a university could only be held accountable if there was demonstrable evidence that a practice significantly influenced students’ choices.

    The DMCC Act has lowered the threshold – requiring only that the practice be “likely to cause” a different transactional decision. The adjustment simplifies enforcement and increases accountability by focussing on the practice, rather than proof of its impact.

    So if a university markets a course as “fully accredited,” professional diligence would require verifying that this is accurate and ensuring students know exactly which accrediting body is involved. Hidden or ambiguous fees would breach the standard of professional diligence. If a course structure is subject to change, professional diligence requires that this possibility be clearly outlined at the offer stage – and no, the mere fact that a module is optional doesn’t make it immaterial, especially if it’s part of a collection of modules forming a definable pathway or is heavily promoted.

    Similarly, if a university’s marketing materials bang on about high employment rates but fail to clarify that these figures only apply to graduates from a single, high-performing faculty, that would also likely represent a lack of professional diligence – because they mislead by omission or misrepresentation, with students potentially making uninformed decisions. See also claims of student satisfaction in the NSS that a PGT applicant might think apply across the board.

    Such a fool to believe

    Misleading practices are those that create a false impression that could cause students (consumers) to make decisions they might not otherwise have made. There are two main types of misleading practices under the DMCC Act:

    • Misleading omissions: Failing to provide necessary information that students need to make informed decisions.
    • Misleading actions: Providing false or deceptive information or presenting it in a way that misleads students about key aspects of a course or service.

    Previously, misleading actions had to involve predefined “features” of a product, like price, availability, or performance. The DMCC Act broadens this, covering any misleading information relevant to a consumer’s transactional decision.

    This in theory means that universities will have to be much more vigilant about how they present information in promotional materials, course descriptions, and enrolment documents. So if a university claims that a programme provides “strong industry links” but fails to clarify that placements are limited and highly competitive, this could be seen as misleading. And omitting critical information – like the fact that modules (or collections of them) have limited enrolment caps or are, given cuts, unlikely to run, could lead to non-compliance.

    The interaction between honesty over how many academics a university expects to still be in post (and therefore the breath of electives) in a faculty or department while officially a consultation is on, and the standard of honesty required for prospective students about what the course could look like by the time they arrive, becomes quite a fraught line to tread – especially when SSRs form the basis of plenty of league table positions.

    And you hurt me this way

    Aggressive practices involve using intimidation, coercion, or undue influence to pressure students (consumers) into making decisions. Previously for a practice to be deemed aggressive, it needed to significantly impair a consumer’s ability to make a free choice – but again the new rules remove the need to demonstrate a significant impairment.

    Universities now have to ensure that their interactions with students – especially in financial and administrative matters – do not involve undue pressure or aggressive tactics. So pressuring a student to settle an outstanding fee under threat of immediate expulsion (or via communication with UKVI, implied deportation) could be seen as undue influence. And insisting that students make immediate decisions about enrolment offers under tight, artificial deadlines could also be considered undue pressure.

    Changes matter too. A student facing demands to agree to a last-minute course or provision change – without much of an opportunity to seek advice – could argue that this constitutes undue influence too, as could not being upfront and clear about a right to alternatives like compensation.

    Didn’t I treat you right

    The old regime maintained a list of so-called “banned practices” – the new Act updates the list to include new ones like manipulating consumer reviews, and revises current ones over stuff like commercial “intent”.

    The practice of posting fake positive reviews, suppressing negative feedback, or otherwise manipulating review platforms will now be explicitly banned. Universities might showcase testimonials, student reviews, or satisfaction survey results in marketing materials – if they selectively hide negative comments or fabricate positive ones, this is now a clear breach of the rules, and are prohibited outright, regardless of whether they affect a consumer’s transactional decision.

    Crucially, this also extends to partnerships with third parties, such as educational agents or recruitment services. If agents engage in misleading promotions on behalf of the university, the institution can be held directly accountable.

    So-called “drip-pricing” refers to practices where consumers are shown an initial price but encounter additional, unavoidable charges later in the purchase process. So if hidden fees (e.g., for lab materials, field trips, or administrative costs) are only revealed after students have accepted an offer, this would breach the new rules.

    So if a university says that tuition fees for subsequent years may increase by “inflation” but does not define the specific measure (e.g., CPI, RPI), students may be misled about their future financial commitments. Similarly, a university that says it might raise fees to the “maximum permitted by the UK government” would not be giving students a concrete understanding of how much their fees might increase. The lack of clarity over what the government could do or how inflation might spike makes the practice inherently risky under drip-pricing rules.

    Well you cheat, and you lie

    Pre-existing rules on “commercial intent” have also been given an update – and key here is that it becomes automatically unfair to fail to identify when there is a commercial motive behind a practice. So if a university engages agents – whether international or domestic – to promote itself and its courses, and those agents (or their sub agents) are being paid to do so, they’re acting under a commercial arrangement.

    The new rules require that any promotional materials or advice provided by these agents clearly disclose the nature of that relationship – so that students don’t get misled into believing that a recommendation is impartial or based solely on academic merits. A lack of active curiosity about what’s being said would also be a professional diligence issue.

    Similarly, if an agent is doling out brochures at a fair, or operating a “central casting photos” website that portrays itself as an “independent educational consultant” without disclosing that it’s getting commission from the university for promoting certain courses, students might not realise that the advice or marketing materials they receive are influenced by financial incentives. Also banned.

    Finally in this section, the scope of what counts as material information has expanded beyond those defined by EU obligations, and misleading actions are no longer restricted to predefined “features” of a product or service – now, any information relevant to a student’s decision can trigger a breach.

    So again, if a university claims to offer “state-of-the-art facilities” but fails to mention that construction delays may affect access for the first academic year, that would be a problem. See also the breadth of optional modules, the actual availability of placements, the ease with which a student might find a house or a job, and capacity restrictions on key facilities or services (the contrast between mental health messaging and counselling appointment delays springs to mind here).

    Cause I couldn’t see it coming

    There’s a few complementary bits about scope and definitions.

    “Commercial practice” will now mean any act, omission, or representation by a trader relating to the promotion or supply of goods, services, or digital content to a consumer. This now includes single acts, promotions by third parties, and indirect transactions. “Product” now explicitly includes both physical and intangible items, such as services, digital content, and rights (e.g., cancellation rights).

    And “transactional decision” is now broadly defined to cover decisions about whether, how, or on what terms to enter into, retain, modify (that’s changes to provision right there), or terminate a contract. That will include choices about enrolment, course selection, or exercising rights (like refunds/compensation if a student chooses to not accept a change).

    That expanded scope means universities should be mindful of how all their interactions, promotions, and partnerships influence student decisions. Even actions that indirectly affect decisions – like partnerships with online platforms or agents – fall within these rules.

    For example, a university’s website might feature rankings or third-party endorsements. If these create an inaccurate impression of the university’s offerings, this could be subject to enforcement even if no immediate enrolment occurs. Similarly, information presented by student advisors or student ambassadors, whether in-person or online, must reflect complete and accurate details about course availability and associated costs.

    Even if a student travels to attend an open day based on claims of available scholarships and later learns that the advertised funding does not apply to their circumstances, this could trigger a valid complaint under the expanded rules. If a university’s online application portal promotes a “guaranteed placement year” but later informs students that placements are competitive and limited, that would be a problem. And if a university uses social media influencers to promote courses but does not disclose that these influencers are paid by the institution, that may also fall foul.

    Oh – and if a course closes to new students, and a commitment to “teach it out” is offered to a student without being clear about alternatives or without specifying what is being guaranteed (“the award” is obviously not enough), that would also be a problem.

    I know it sounds funny

    It’s also worth briefly explaining some changes relating to (consumer) vulnerability. It’s no longer viewed as a peripheral issue – and instead is now embedded within the broader assessment of fairness in commercial practices. The rules explicitly acknowledge that certain groups may experience disproportionate harm from practices that might not affect others to the same degree, but the change shifts enforcement priorities to focus more on the experiences of those in vulnerable situations rather than just their characteristics.

    Universities must now proactively identify and mitigate risks to vulnerable students as part of their duty of professional diligence, and enforcement bodies can act if a practice is likely to disadvantage or mislead vulnerable students, even if the practice is not harmful to others.

    That raises questions where a university might have marketed courses to international students without fully explaining complex visa restrictions, or if a disabled student faced unexpected additional costs for accommodation, or accommodations.

    Aggressive fee collection tactics might now be evaluated over whether they cause undue stress or confusion for those thousands away from home, and crucially telling students they can exit a contract when they’re only told about changes in September might represent a problem too, even if the CMA thought it realistic they could exit – which it notably doesn’t – because a student agreeing to a contract change is very much a transactional decision when their vulnerability is situationally heightened.

    The ASA’s consultation largely reflects all of the above. Central to changes it is proposing is the requirement for price transparency – marketers must now include all mandatory fees upfront and clearly outline optional costs. Misleading by omission, such as failing to disclose future price increases, is prohibited, as is the use of fake reviews or selectively promoting favourable feedback. Stricter oversight will also apply to marketing targeting vulnerable groups, with particular sensitivity to factors like age and mental health.

    If, for instance, a university advertises tuition fees that may rise “by inflation,” it’s pretty clear that they’d need to specify the inflation index (CPI, RPI, or others) they are referencing, along with the specific timing or source of that data. If different universities adopt varied approaches to calculating inflation-linked fee increases, different students would end up being charged more in ways they were unable to choose between – a real problem.

    Its proposed new regs also boost up that focus on professional diligence. Marketing practices that impair a consumer’s ability to make well-informed choices will be judged as unfair, marketing towards children (under 16) must avoid direct appeals to buy products or services, and children over 16 are textbook vulnerable. And yes agents – and agents of agents – are covered.

    That just won’t do

    A cynic might argue that there’s little for universities to worry about here – in England, the Office for Students (OfS) hasn’t exactly been proactive over this agenda, and it’s pretty unclear as to who might be doing active enforcement elsewhere in the UK.

    In theory the big change in the DMCC Act is that the CMA gets enhanced enforcement powers – and will now be able to directly assess and enforce breaches of consumer protection rules without having to rely on court decisions, impose civil penalties for unfair commercial practices (up to a whopping 10 per cent of turnover, no less), and hold corporate officers liable for offences if they are found to have consented to or negligently allowed breaches of consumer protection law to occur.

    That’s breaches of consumer protection law in general, by the way – suggesting that a university sat on legal advice that says something along the lines of “it’s probably a breach but the risk is low given the number of complaints and so on” might need to re-evaluate the angle of the see-saw.

    That would all matter more if the CMA had shown anything other than a passing interest in universities over consumer law complexities during Covid and strikes, the big question marks over the legality of fee increases for continuing students, or the ongoing questions that surround making changes to what was offered and promised to continuing students as cuts get implemented.

    One of OfS’ excuses in this space – that it was never given enforcement powers over consumer law, and so has to instead test whether providers have paid due regard, and refer cases of concern to National Trading Standards – at least in theory could get interesting if interim chair David Behan’s request for OfS to be given those powers got picked up by government. Either way, none of that sounds like it’s coming soon.

    There are some wider questions concerning both the CMA and the EU. The CMA’s chair was all but sacked a few weeks ago by a government keen to signal that red tape from regulators was holding back growth. On the other hand, much of what’s in the DMCC Act aligns us with developments in EU law – and it’s alignment that matters for the closer relationship that Keir Starmer is trying to deliver without crossing any of the formal “red lines”. Whether all of that impacts the results of the consultation remains to be seen.

    The interactions with everything from the soon-to-be-mandatory Agent Quality Framework (where plausible deniability looks to be soon getting less plausible and less deniable) to student protection (an issue both for OfS and, soon, Medr) are fascinating – in the latter’s case partly because the duties here go well beyond “cessation”, partly because cuts to things are often defined as immaterial in ways that this legislation would surely prevent, and partly because even where changes are material, students are under intense pressure to just accept them – because what are the alternatives?

    As such we might reasonably have expected OfS, Medr and even the SFC to have drawn the CMA and ASA consultations to the attention of a sector for whom the changes could be profound. If that has happened, I’ve not heard about it.

    Taken at face value, this all looks pretty sensible from a student point of view – be (more) honest about what’s on offer, be careful about who’s offering it (especially when you’ve incentivised them to do so), think about who’s vulnerable (both characteristically and situationally) and then deliver what you’ve promised – they all sound like the sort of thing that should be in law even if it wasn’t through the optic of “consumer”.

    But it continues to be the case that all of that sits uneasily with a sector that is used historically, and is now being expected by government and regulators actively, to scale up and down what it offers in a given year based on the (previously public) funding available to it. It’s a set of circumstances that, in theory, should have been making it much harder to implement cuts, but doesn’t seem to have so far. If the stable door is about to get a new lock on it, it does feel like the horse will have long bolted by the time that lock could have helped.

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  • Getting in and getting on needs to go up the agenda, not down

    Getting in and getting on needs to go up the agenda, not down

    In January I attended an event alongside colleagues from over 50 universities spanning the breadth of the country.

    Collectively we held a significant chunk of the sector’s strategic responsibility for developing, writing and delivering activity linked to the Office for Students’ vision for fair access and participation.

    We came from different regions and geographic contexts, working in a range of providers of different sizes, histories, and specialisms.

    What brought us together, however, was a passion and commitment to a set of underlying principles which form the foundation of our collective endeavours.

    The Forum for Access and Continuing Education (FACE), a charity committed to enabling opportunities across the educational landscape, held their annual summit at the Guildhall School of Music and Drama.

    With speakers such as Public First and John Blake, Director for Fair Access at the Office for Students, the event examined how work which promoted fair access and participation could help us navigate a period of significant turbulence within the HE sector, and society as a whole.

    Challenges and threats

    It’s fair to say that doing so won’t be easy. The opening plenary from Public First brought home the gravity of the challenge ahead. Whilst many of us thought that a change in government, and an end to the relentless attacks on the sector linked to culture wars narratives, would make life easier for the sector, we may have been overly optimistic.

    Providers may not be bracing themselves for a barrage of criticism from policymakers, but we are far from the top of the list of governmental priorities for support.

    Polling of voters demonstrated that education, let alone higher education, just wasn’t at the top of issues that they cared about. When this is combined with the fact that, compared to schools with leaky roofs and a Further Education sector whose funding has been decimated, universities seem pretty awash with cash – and it makes it difficult to gain the buy-in necessary to bring about much-needed reform in the sector.

    Without reform, it is highly likely that those who will be hardest hit by challenges linked to a financial crisis will be students who already navigate multiple barriers linked to experiences of inequality.

    Whether it be cuts to university access funding, the hours that they will have to work alongside their studies, or a lack of subject breadth available to study locally due to course closures, we would be naive to assume that these challenges wouldn’t be compounded for students who have fewer cultural, social and economic opportunities afforded to them to begin with.

    It leaves us facing the possibility that, without these students being robustly advocated for in conversations linked to policy and practice, any progress made in greater equity of opportunity to date could unravel quickly and significantly.

    Opportunities

    But where there are threats and challenges, there are also opportunities – for a bold, innovative approach to the ways in which we meet them.

    It would be fair to say that, at times, the sector may have rested on laurels with regard to fair access and participation. Generally speaking, the Blairite goal of “getting more bright poor kids” to university has succeeded. We’ve seen a massive expansion of student numbers, and a significant increase in the diversity of the sector in terms of types and sizes of institution.

    However, it has also become painfully obvious that this isn’t enough. For our sector to truly fulfil its potential, we need to demonstrate how it can be achieved through enabling opportunity. The conversation about this to some degree has already begun. In December John Blake, announced his vision for the future of collaborative outreach. Within this was greater focus on regional partnerships as cornerstones in our national efforts to tackle inequity of opportunity.

    Within the ocean of policy decisions facing the new government, this is just a ripple. DfE has consultations on on the school curriculum and school inspections, there’s a delay in the rollout of the Lifelong Learning Entitlement, and serious thought is being given toward a National Youth Strategy.

    For those of us who work as professionals in university access and participation, the capacity for our work to contribute to the generation of civic, social and economic opportunities are readily apparent.

    But when it comes to the articulation of higher education’s value, our significant efforts are often overlooked or untapped. As a community, we convened at the FACE Summit to mobilise and become larger than the sum of our parts – to, as a collective, begin to proactively engage in policy issues which directly impact upon on the lives of people, young and old, who we have made it our vocation to support.

    That means creatively and innovatively engaging with the role of universities in meeting the challenges presented in wider society, and to be bold in our articulation of a fairer, more equitable future.

    If the sector wishes to robustly demonstrate how it breaks down barriers to opportunity, talking to us would be a very good place to start.

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  • Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech

    Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech

    Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza. 

    While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis. 

    FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.

    Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothing new. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus … And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.) As Stern predicted in that piece:

    If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.

    Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.

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    At public universities, which are bound by the First Amendment, it’s possible that the test will not last that long. In a case over the definition’s adoption by Texas public institutions by gubernatorial executive order, a federal judge ruled last October that Students for Justice in Palestine was likely to succeed in its claim that policies using the IHRA definition “impose impermissible viewpoint discrimination that chills speech in violation of the First Amendment.” The policies are still in place until the trial, which is scheduled for January of 2026.

    But even if use of the IHRA definition is struck down at public universities, that would not prevent its use at Harvard or hundreds of other private institutions. FIRE’s opposition to the use of the IHRA definition for the purpose of regulating speech is not because we do not believe anti-Semitic harassment is not happening. Obviously, it is. Nor is it because we believe anti-Semitic harassment is not worth attention or not prohibited by civil rights law. Again, it is. Our concern is with the IHRA definition itself and the way campuses across the country are likely to misapply it to further chill speech — and use it as an entering wedge to do the same with speech on every other topic under the sun. If the underlying issue were bigotry against any other group, our concerns would be the same. (And if you are aware of such efforts, please bring them to our attention.)

    The IHRA definition and anti-discrimination law

    At the outset, the adoption of the IHRA definition to define anti-Semitism is itself novel in that laws and rules in the United States generally do not define what acts specifically are racist, sexist, religiously bigoted, or anti-Semitic. They are written from the perspective of prohibiting discrimination against a class of people protected by that law. In the case of Title VI of the Civil Rights Act of 1964, for example, that includes race, color, and national origin. But the law does not go on to say “and here is what is racist” followed by a list of examples or a definition. That is left to judges and fact-finders to determine, taking into account the facts and context of a given case.

    Detailed definitions and examples are much less novel on college campuses, though they have long been problematic. Back in 2007, FIRE took issue with the University of Delaware for a mandatory freshman orientation that (among a massive number of its problems) defined “a racist” as “all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture, or sexuality.” Sexual harassment is often (too broadly) defined simply as “unwelcome conduct of a sexual nature,” which is unhelpful and overbroad, and then further runs aground on examples like Cal State-Channel Islands’ (our July 2019 Speech Code of the Month) “derogatory posters, cartoons, drawings, symbols, or gestures.” 

    The IHRA definition combines a couple of these problems. Its website explains

    On 26 May 2016, the Plenary in Bucharest decided to:

    Adopt the following non-legally binding working definition of antisemitism:

    “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

    Let’s look at this with an eye towards enforcement. Did a person accused of discriminatory harassment do so based on having “a certain perception of Jews?” What perception is that? Hatred? Not exactly, as it “may be expressed as hatred towards Jews.” But if it “may be expressed as hatred towards Jews,” it may also not be expressed as hatred towards Jews. That leaves open the possibility that anti-Semitism can be expressed by anything. The definition then moves on to say that it can be directed toward “Jewish or non-Jewish individuals and/or their property.” The group of “Jewish and non-Jewish individuals” includes literally everyone. It is more specific about community institutions and religious facilities, excluding those that are not Jewish.

    The IHRA definition’s flexibility and reach introduce serious problems when the definition is being used as a speech code that can result in the discipline of individuals or the silencing of their speech. 

    Most of the definitional work, then, is left to be done by analogy to the examples, which IHRA makes clear, saying, “To guide IHRA in its work, the following examples may serve as illustrations.” Some of those examples include hard-to-argue-with propositions like “Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion,” or “Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.” But other examples have a much greater potential overlap with political critiques, such as “Drawing comparisons of contemporary Israeli policy to that of the Nazis,” and “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor,” both of which were cited by the judge in the Texas lawsuit mentioned above. Still others are somewhere in between, like “Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”

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    For the IHRA definition’s intended purpose — to identify anti-Semitism in Europe so that the IHRA may catalog and identify it — the breadth of the examples isn’t too much of a problem. It is common, at FIRE and everywhere else, to ask someone to look for examples of a certain kind of incident by telling them “look for things that look like this.” The sweep of the examples is likely helpful for the IHRA’s intended aim, in that they may capture “edge cases” that don’t strictly fall into the definition but nevertheless seem like part of what it was intended to cover.

    Yet the IHRA definition’s flexibility and reach introduce serious problems when the definition is being used as a speech code that can result in the discipline of individuals or the silencing of their speech. The definition is simply not constructed in a manner that makes for fair and predictable application by different individuals, even if all of those individuals are trying their level best. That’s likely why the IHRA went out of its way to label it both a “non-legally binding” and “working” definition, building into the definition’s very text the recognition that it was neither intended to be used as a regulation nor the final word.

    Having said that, IHRA goes on to couch things even further. Preceding the examples, it writes:

    Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.

    Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to: […]

    The bolded phrases are all qualifiers that leave more openings for interpretation — a situation that courts recognize as a problem in the area of free speech because it makes the rule too vague to follow or fairly administer. In Grayned v. City of Rockford, a landmark 1972 case, the Supreme Court explained that a law (or regulation) is unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” And vagueness is a particular problem when the rule concerns free speech: “[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.”

    Harvard is private, so the First Amendment doesn’t directly apply on its campus, but the underlying problem for any institution that claims to be committed to free speech is the same.

    Applying the IHRA definition in practice

    Let’s walk through one example to see how this can play out.

    Accusations that Israel is an “apartheid state” are common on campuses (including at Harvard). Are they anti-Semitic? Many would say yes; the ADL calls labeling Israel as an apartheid state “inaccurate [and] offensive,” and notes it is “often used to delegitimize and denigrate Israel as a whole.” A large majority of Americans may find it unconvincing — only 13% in this April 2023 poll agreed that Israel was “a state with segregation similar to apartheid.” Yet saying that Israel’s Jews are oppressing Palestinians by running an apartheid regime is most certainly criticism “similar to that leveled against” countries like the United StatesIndiaMalaysia, and course the former regime of South Africa (the country from which the term originates), along with many others, past and present. If applying the actual words of the IHRA definition, then, this seems to mean that accusations of Israeli apartheid “cannot be regarded as antisemitic.”

    On the other hand, Israeli apartheid accusations do sound similar to several of the IHRA examples. Is the apartheid accusation “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor?” That’s close, but not exactly right; you may think that Israel should exist, but with different policies. Is it “[a]pplying double standards by requiring of it a behavior not expected or demanded of any other democratic nation?” This depends on whose expectations or demands are being considered. And is making the claim while mostly around American Jews rather than Israeli Jews a form of “[h]olding Jews collectively responsible for actions of the state of Israel,” since most of your Jewish listeners are likely to be American, with little influence on what Israel does?

    None of these are easy questions. Regardless of your personal view, you will find reasonable people who disagree on the answers. And that’s exactly why the IHRA’s examples, when used as part of a speech regulation, threaten protected speech.

    Nobody asked the IHRA to come up with a law or rule to define anti-Semitism for purposes of determining what might be discriminatory harassment on American campuses. It’s not the IHRA’s fault that the definition is not right for that purpose.

    Ask yourself: What would you do if put in the position of the fact-finder tasked with using the IHRA definition to determine whether a person had engaged in prohibited discriminatory harassment by constantly banging the drum about “Israeli apartheid?” First, you would look to see if the accused said or did something else that would make the prohibited discriminatory intent — that the real reason for their activity was prejudice, not political disagreement — more obvious. If so, problem solved: you can either ignore the apartheid accusation or feel fairly safe assuming that this particular person did mean it to be anti-Semitic.

    But if there’s no other helpful evidence, you have to make a decision: Do I believe the IHRA definition actually means what it says about how “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic?” The rules of grammar and logic dictate one answer. But, you think, “that can’t actually be what the rule means, can it?” You look at the examples and can’t figure it out, so you just pick one meaning and go with it. This isn’t an application of the rule based on the facts before you. It’s essentially a coin-flip, and replacing it with an actual coin-flip would produce an equally accurate outcome.

    More likely, though, you’re on the disciplinary panel because you care about the college community and are determined to try to do what’s best for it. You ask yourself: “Is anyone really that angry about political discrimination in a far-off land, or is it really hostility towards Jews? Might they escalate to physical violence if I let them ‘get away’ with it? Maybe it’s better safe than sorry; after all, this person sounds unpleasant to be around.”

    Either way, you don’t have the information you need to know whether the person is guilty or innocent, because you don’t know what the rule actually forbids. You can speculate about what it means, and you have incentives to find a certain way. But the main thing you have to fall back on is the one thing for which you don’t need any process or information at all: prejudice. Imagine the most likely result with a white student named Stacy. Then a Latino student named Reuben. Then a black student named Denise. Then an Arab student named Mohammed. Are all these cases equally likely to come out the same way? The obvious answer is no.

    That’s the cost of punishing people for breaking rules that are too vague to understand, or too confusing to follow, or that reasonable people can read entirely differently from one another. 

    This is bad practice with any rule, but it’s particularly bad with rules that can affect expression. Vague and incomprehensible rules about income taxes are certainly bad, but people are still likely to work and pay (most of) their taxes. Vague rules about speech means people silence themselves, at least in public, which only encourages resentment and radicalization. 

    Nobody asked the IHRA to come up with a law or rule to define anti-Semitism for purposes of determining what might be discriminatory harassment on American campuses. It’s not the IHRA’s fault that the definition is not right for that purpose. It will be the fault of a school who adopts it when the inevitable injustice results, and quite possibly turns a persuadable political opponent into someone with a racial or religious ax to grind.

    Harvard compounds the problem through hypocrisy

    Harvard’s FAQ attempting to explain how this applies only makes the situation worse.

    A few days after announcing the settlement, Harvard also released a Frequently Asked Questions document about its updated policy. It’s more than 3,500 words long, and refers students to the IHRA definition as well as Harvard’s own (also long) Non-Discrimination and Anti-Bullying Policy. It states that “[d]iscrimination on the basis of the following protected categories, or any other legally protected basis, is unlawful and is prohibited,” with those categories being 

    According to the press release, Harvard agreed to include discrimination against Zionists as a form of punishable discriminatory harassment, apparently independent of whether those Zionists are or are perceived to also be Jewish. The FAQ confirms this, but with a twist — it covers anti-Zionists, too:

    Does conduct that would violate the Non-Discrimination Policy if targeted at Jewish or Israeli individuals also violate the policy if targeted at Zionists?

    Yes, provided that the conduct meets the requirements for discriminatory disparate treatment or discriminatory harassment. The Non-Discrimination Policy includes among its protected categories religion, national origin, shared ancestry or ethnic characteristics, and political beliefs. For many Jewish people, Zionism is a part of their Jewish identity. Conduct that would violate the Non-Discrimination Policy if targeting Jewish or Israeli people can also violate the policy if directed toward Zionists. Examples of such conduct include excluding Zionists from an open event, calling for the death of Zionists, applying a “no Zionist” litmus test for participation in any Harvard activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., “Zionists control the media”), or demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism to harass or discriminate.

    Such conduct would need to meet the standards expressed in the Non-Discrimination Policy for discriminatory disparate treatment or discriminatory harassment, as described above.

    Zionists, anti-Zionists, and non-Zionists are all protected against discriminatory disparate treatment and harassment under the policy.

    Does conduct that would violate the Non-Discrimination Policy if targeted at Muslim, Arab, Palestinian individuals also violate the policy if targeted at individuals who support Palestinian rights?

    Yes, parallel to the question and answer above, provided that the conduct meets the requirements for discriminatory disparate treatment or discriminatory harassment. The Non-Discrimination Policy includes among its protected categories religion, national origin, shared ancestry or ethnic characteristics, and political beliefs such as support of Palestinian rights.

    On one hand, this can be seen as solving the problem of appearing to carve out special protections for those with a particular religious or political belief (Zionism is at least one of those and sometimes both) by according the same level of protection to those with the opposing belief. Perhaps this will end up being a net benefit for Jewish or Zionist students who are discriminatorily harassed — if one assumes that Harvard administrators did not already know that Zionism was, if not a religious belief, certainly a political belief. (That seems hard to swallow, but it’s possible.) What Harvard appears to do with this FAQ is simply subsume the settlement into its pre-existing protections against discrimination against people based on their political beliefs.

    And that’s where this all breaks down, because it’s quite possible that there is not a single person on this planet who sincerely believes that Harvard does not engage in disparate treatment of people based on their political beliefs. (Start here and keep on scrolling.)

    It is no exaggeration to say that FIRE would not exist if Harvard didn’t play favorites with regard to politics. Its decades of doing so were a major factor in leading FIRE co-founder Harvey Silverglate (a graduate of Harvard Law who to this day resides in Cambridge, and who often represented Harvard students at its disciplinary hearings) to realize that something had gone terribly wrong on our nation’s college campuses. He would eventually join FIRE’s other co-founder, Alan Charles Kors, to publish The Shadow University back in 1998, and to found what began as the Foundation for Individual Rights in Education the following year. Harvard’s written prohibition against political discrimination was already in place when then-president Claudine Gay stepped on a metaphorical rake regarding anti-Semitism in front of Congress in 2023, starting a chain of events that led to her resignation.

    Simply put, if Harvard was serious about preventing discrimination against Jewish or Zionist students, it already had the ability to do so. Whether based on status or belief, they were certainly protected under Harvard’s existing policies. Harvard just didn’t feel like enforcing those rules for the benefit of those students.

    Nor did Harvard feel like using the correct standard for discriminatory harassment in the educational context — the Davis standard that behavior must be “severe, pervasive, and objectively offensive” (as well as fulfill several other factors) to be punishable discriminatory harassment. FIRE has written exhaustively about the importance of the Davis standard (here’s a primer in two parts on it), and why the constant attempts of schools to water it down by pretending “and” is the same as “or” are dangerous for free expression.

    Groups across ideological spectrum unite in opposing Antisemitism Awareness Act

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    Harvard has done exactly that, watering down the Davis standard to require only that to be punishable, offensive behavior merely be severe or pervasive, not both. Here’s the thing: a great deal of activism is meant to be pervasive. Ongoing protests, social media campaigns, distribution of literature, the display of flags and signs, and many other forms of expression can all go on for days, weeks, or months. The messages may well be offensive, even objectively offensive. Requiring that the communication of these messages also reach the level of severity is a fundamental guardrail preventing the use of discriminatory harassment policies to silence protected speech — and Harvard has gone ahead and pulled that guardrail right out.

    Presumably, the plaintiffs are hoping that this settlement will at least focus Harvard’s attention on discrimination against Jewish and Zionist students. This is likely to be true, at least until the heat is off. Given the past couple of years, it’s hard to blame anyone involved in the Israeli-Palestinian controversy for being upset about how campuses have treated them. But the permanent effect of broadening the reach of discriminatory harassment policies so that virtually every cultural, political, or religious disagreement becomes a potential matter for investigation will inevitably be to chill speech on any topic that might be controversial.

    Harvard is likely just fine with that chilling effect, and even more content to know that the more overbroad, vague, and complicated it can make its harassment policies, the more discretion its administrators have to simply do whatever they want. Not only does the vagueness guarantee this outcome, but the FAQ contains plenty of “savings clause” language that gives Harvard the ability to apply the policy arbitrarily. How about this gem:

    Ordinarily, it will not violate the NDAB Policies for members of the Harvard community to make controversial statements in the course of academic work or in scholarship; express disagreement with another person’s political views; or criticize a government’s policy or the political leaders of a country.

    “Ordinarily” it won’t — which means sometimes it will. Can you determine when that might be by reading the policies? No. The answer, then, is “when we say it will.”

    This is not a win for free speech or for anti-discrimination. This is a license for Harvard to go right on doing whatever it wants.

    The double standards are the real problem

    The words “Equal Justice Under Law” are carved on the front of the Supreme Court for a reason. 

    There is little that is more corrosive to a society or community than rules that allow the authorities to treat offenses differently depending on who the alleged victims or offenders might be. This is a common thread in many FIRE cases, but it’s impossible not to notice how clearly it takes front and center in complaints by Jewish or pro-Israel students that they are subjected to treatment that no campus would accept were it aimed at other minority groups.

    The complaint in the Brandeis Center v. Harvard case at issue is just one among many examples. It’s literally the first thing they bring up in the complaint. While Harvard promises to prohibit “[b]ullying, hostile and abusive behavior,” the plaintiffs write:

    [A]s to Harvard’s Jewish and Israeli students, these promises are empty. In recent years, and especially in the last few months, Jewish and Israeli students have been subjected to cruel antisemitic bullying, harassment, and discrimination. And when Harvard is presented with incontrovertible evidence of antisemitic conduct, it ignores and tolerates it. Harvard’s permissive posture towards antisemitism is the opposite of its aggressive enforcement of the same anti-bullying and anti-discrimination policies to protect other minorities.

    FIRE has spoken to enough students at Harvard and other institutions to give us no reason to doubt this is true. While a perennial problem with regard to many issues, the transparent application of double standards has been particularly central to the complaints of Jewish and pro-Israeli students.

    The extent to which this is acutely felt by Jewish and pro-Israeli students is further compounded by the fact that the application of double standards to Jews and/or Israel is widely considered to be a central characteristic of specifically anti-Semitic bigotry. After all, the words “double standards” literally appear in one of the IHRA examples of potential anti-Semitism: “Applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.”

    Consider this allegation, taken from the Brandeis Center’s complaint:

    On October 18, 2023, another member of JAFE and the Brandeis Center, Member #4, an Israeli Jew and a student at the Harvard Business School (“HBS”), was walking through campus when he encountered an outdoor anti-Israel protest and decided to video the event, as others were doing. When protestors saw him and identified him as Jewish and/or Israeli, they accosted him. A mob surrounded him, engulfed him with keffiyehs, and chanted “Shame! Shame! Shame!” in his face. The assailants grabbed him, and one hit him in the neck with his forearm, before forcing Member #4 out of Harvard’s quad…. The video of the assault is shocking. But more remarkable perhaps is that Harvard has not taken any action to date to redress both the physical assault and the clear violations of its Anti-Bullying and Anti-Discrimination Policies.

    Assuming this account is anywhere near the truth, it is impossible to imagine this being Harvard’s reaction to, say, a group of white students doing this to an African-American student. Nor is any change to policy required to handle this situation. You don’t even need a discrimination policy to prevent people from shoving others around. If Harvard truly sat on its hands here, that’s because it wanted to.

    The solution to this problem will not come from making people at Harvard more aware of what represents anti-Semitic discrimination, expanding the number of protected classes, or broadening their interpretation in a way that cannot help but scare people away from speaking. It can only be solved when the people in charge are either no longer willing or no longer able to apply noxious double standards in order to advance their own political, religious, or cultural agendas.

    Adopting the IHRA definition of anti-Semitism will chill campus speech. We can hope that it will also help at least a few Harvard students whose episodes of discriminatory harassment might otherwise be ignored, assuming the Harvard administration feels the need to make a show of things. It won’t address the root problem. But it will set Harvard up for plenty of new ones.

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