Tag: Challenge

  • Challenge of Leading Elite Institutions in Populist Age of Distrust

    Challenge of Leading Elite Institutions in Populist Age of Distrust

    In the face of the Gaza protests, presidents at the nation’s most prestigious campuses were caught between a rock and a hard place—and somehow managed to trip over both.

    Pressured on one side by students and faculty demanding moral clarity and action and on the other by donors, trustees and politicians insisting on firm leadership and institutional neutrality, they found themselves in a no-win situation.

    In attempting to balance these competing forces, they pleased no one, offering statements too vague to satisfy activists yet too equivocal to reassure their critics.

    Instead of navigating the crisis with principled leadership, many stumbled into a public relations disaster, alienating both their campus communities and external stakeholders.

    What should have been a moment for measured, thoughtful leadership instead became a showcase of hesitation, miscalculation and rhetorical gymnastics that satisfied neither moral conviction nor strategic pragmatism.

    Could Presidents Have Done Better?

    Yes, the leading university presidents could have handled the Gaza protests more effectively, but doing so would have required a combination of patience, strategic engagement and deft leadership—qualities that many struggled to summon under intense pressure.

    In his forthcoming memoir, former Harvard president Neil Rudenstine argues that navigating the crisis required time, strong relationships with key stakeholders, active faculty involvement and innovative problem-solving—qualities that were largely absent in the response.

    1. Patience: A Scarce Commodity in a Crisis

    Rudenstine’s call for patience underscores a fundamental challenge: Neither protesters nor institutional critics were willing to wait for careful deliberation. Protesters demanded immediate moral clarity and action, while external stakeholders—donors, trustees, politicians—expected firm and unequivocal leadership.

    University presidents, caught between these forces, often reacted hastily, issuing statements that satisfied neither side. A more patient approach would have required resisting the impulse to make rapid, reactive pronouncements and instead creating structured, ongoing dialogue with campus constituencies. It would have meant acknowledging the urgency of the moment while also emphasizing the need for thoughtful decision-making.

    1. Rapport With Stakeholders: The Perils of New Leadership

    Building trust with students, faculty, alumni, trustees and external critics is difficult in the best of times, and it is even harder for new university presidents who have not yet cemented their authority or personal relationships within their institutions. Many of the university leaders embroiled in the controversy were relatively new to their positions, inheriting polarized political environments without deep reservoirs of goodwill to draw from.

    In moments of crisis, long-standing relationships and credibility matter. Presidents who had not yet established rapport with key stakeholders found themselves viewed with suspicion from all sides, making it difficult to act decisively or persuasively. This underscores the importance of proactive engagement: University leaders must invest in relationship-building early, so that when crises inevitably arise, they have a foundation of trust to rely upon.

    1. Faculty Engagement: An Untapped Resource

    University faculty represent a deep well of institutional knowledge and intellectual expertise, yet in many cases, faculty were sidelined as presidents struggled to navigate the crisis.

    A more effective response would have involved drawing on faculty members—especially those with expertise in history, diplomacy, political science and conflict resolution—to help craft statements, advise on messaging and offer guidance on institutional policy.

    Faculty could have also served as intermediaries between student activists and administrators, helping to create structured conversations rather than performative clashes. By failing to engage faculty early, many presidents lost an opportunity to ground their responses in scholarly insight and institutional legitimacy.

    1. Creative Responses: Beyond the Standard Playbook

    The default approach to campus protests—issue a statement, enforce campus policies and hope the storm passes—was woefully inadequate in this case. Rudenstine’s emphasis on creativity suggests that university leaders needed to think beyond standard crisis-management tactics. Instead of simply trying to placate or rebuff different constituencies, presidents could have:

    • Convened structured debates or forums featuring scholars and public intellectuals with diverse perspectives, transforming conflict into an opportunity for rigorous academic engagement.
    • Established faculty-led committees to develop thoughtful, universitywide policies on how the institution engages with global conflicts, providing a long-term framework for future crises.
    • Created dedicated spaces for dialogue, ensuring that protesters had a platform for their voices to be heard while also setting clear boundaries on disruptions to academic life.

    The Leadership Test They Failed

    The Gaza protests revealed deep weaknesses in university leadership, exposing the inability of many presidents to navigate the complex intersections of free speech, academic integrity, donor pressure and campus activism. A better response would have required patience, trust-building, faculty engagement and creative problem-solving—qualities that were largely absent in the moment.

    The lesson for future leaders is clear: Effective university leadership is not just about managing crises when they arise but about laying the groundwork well in advance, ensuring that when the inevitable storm comes, the institution has the resilience and credibility to weather it.

    The High Cost of Leadership: Neil Rudenstine’s Harvard Presidency

    In a 2001 Harvard Crimson article entitled “The Final Word on Neil Rudenstine,” Catherine E. Shoichet, now a senior writer for CNN, offers a detailed account of that president’s tenure at Harvard—dissecting both his successes and the significant sacrifices and costs it exacted.

    Presidents are chosen to solve particular problems, and Rudenstine was tasked with two major challenges: overseeing Harvard’s first universitywide capital campaign and knitting together a sprawling, fragmented, disjointed institution. As president, he transformed the university’s financial standing—adding billions to its endowment—and initiated wide-ranging administrative reforms, including the re-establishment of the provost position.

    His most notable achievement was increasing Harvard’s endowment from roughly $4 billion to $19 billion in just 10 years, laying the financial foundation that sustains the university’s wealth today.

    However, the article also stresses the heavy personal toll these challenges took on him—a topic that Rudenstine’s own account surprisingly omits.

    Few presidents were better prepared for the job; he had been a respected faculty member, a productive scholar, a well-regarded dean of students, an effective provost and an extraordinarily hard worker. Yet his relentless focus on fundraising and institutional overhaul led to a three-month leave of absence in 1994, fueling rumors of a nervous breakdown. Remarkably, he went on to serve for another seven years after that difficult period.

    Shoichet notes that for all his accomplishments, including launching development of a new campus in Allston and revitalizing Harvard’s Afro-American Studies Department and establishing a then-novel interdisciplinary initiative in mind, brain and behavior, his presidency also resulted in a perceived disconnect between the administration and the student body—a criticism that has followed him since his Princeton days.

    His reserved public persona, which contrasted with the more overtly engaging styles of his predecessors, led to both admiration for his methodical, inclusive approach and criticism for being too detached from everyday campus life.

    The Shoichet article exposes the inherent trade-offs of his approach. Rudenstine’s intensive focus on high-stakes fundraising and administrative restructuring appears to have come at the expense of deeper engagement with the student body. His humility was confused with weakness and a lack of strong convictions. His leave of absence illustrates how the pressures of managing an institution as vast and complex as Harvard can affect even the most capable leaders.

    This duality—the balance between transformative success and the personal, institutional costs—forms the crux of Shoichet’s argument.

    Her narrative situates Rudenstine within a broader historical context. By comparing his tenure with those of former Harvard presidents such as Nathan M. Pusey and Derek Bok, Shoichet argues convincingly that the challenges Rudenstine faced were unique to a new era of higher education—one marked by rapid expansion, increased institutional complexity and a heightened focus on financial management.

    Despite his remarkable achievements, Rudenstine never garnered the same level of acclaim as his illustrious predecessors. In much the same way, many of his successors—including Lawrence Summers, Lawrence Bacow and Claudine Gay—have often been met with ambivalence or even disdain.

    The reality is that leading an institution as formidable as Harvard has become nearly impossible. It is no wonder that the average tenure of college presidents nationwide has shrunk from around eight years to just about five—hardly enough time to make a lasting impact.

    Rudenstine’s legacy, therefore, is not simply measured by his achievements but by the enduring questions it raises about the nature of leadership in a modern academic institution.

    The Daunting Realities of University Leadership: A Seat of Prestige, Not Power

    We often imagine university presidents as powerful figures—intellectual stewards shaping the future of higher education. But Rudenstine’s Our Contentious Universities flips this perception on its head. He’s not speaking truth to power; he’s speaking truth about power—revealing that university presidencies are as much about constraint as they are about command.

    The title of university president carries an air of authority, but Rudenstine’s message is clear: The power of the office is often more symbolic than substantive. Instead of wielding control, presidents juggle competing interests, manage crises and navigate the impossible demands of faculty, students, donors and politicians. The real truth? The presidency is more burden than throne.

    Holding the most prestigious seat in higher education, Rudenstine isn’t telling us how to wield power—he’s telling us how little of it university presidents actually have. His book dismantles the myth of the omnipotent academic leader and replaces it with a far grittier reality: that influence is fragmented, authority is constrained and leadership is often just crisis management in an ivory tower.

    If “speaking truth to power” is about confronting authority, Our Contentious Universities reveals an unexpected reversal: Often, those in power are the ones struggling to be heard. Rudenstine lays bare the paradox of university leadership—an office that looks commanding from the outside but feels impossibly constrained from within.

    The real work of a university president is not about wielding authority but about navigating limits, managing expectations and negotiating between forces that are often beyond their control.

    The power we imagine? It’s largely an illusion.

    Why University Presidents Have Less Power Than We Think

    Through a mix of historical analysis, personal experience and candid reflection, Rudenstine argues that the role of the modern university president is far more constrained than many outsiders assume.

    Three overarching arguments structure his book:

    1. The Paradox of Institutional Wealth and Administrative Complexity

    Elite universities have never been wealthier, yet they have become significantly more challenging to manage. The sheer scale and bureaucratic complexity of modern research institutions—coupled with the decentralized governance structures of many elite universities—make it extraordinarily difficult for a president to assert a unifying vision.

    Harvard, perhaps the most extreme case, operates under the philosophy of “every tub on its own bottom,” meaning that each of its schools, institutes and centers manages its own budget and academic affairs with substantial autonomy. Its endowment, divided into over 11,000 different funds with various restrictions, further complicates efforts to mobilize financial resources for cross-university initiatives.

    But Harvard is not unique in this regard—many elite institutions lack a clear common mission or identity beyond their reputation for excellence. As a result, university presidents often find themselves in the role of coordinators rather than decision-makers, navigating a complex web of faculty interests, donor expectations and institutional traditions.

    1. Student Protests: A Recurring but Intensifying Challenge

    Student activism has long been a defining feature of American higher education, and today’s campus protests are in many ways a continuation of past movements—whether over free speech, civil rights, the Vietnam War, South African apartheid, a living wage and labor rights, or fossil fuel divestment.

    Rudenstine reminds readers that campus unrest is not a new phenomenon and, in many cases, past protests were just as contentious as, if not more so than, those of today.

    However, he argues that contemporary campus protests present a unique set of challenges that make them especially difficult to resolve.

    First, the media and political spotlight on higher education is more intense than ever before, amplifying every controversy into a national debate. Social media accelerates and inflames conflicts, often distorting the reality of what is happening on the ground.

    Second, outside political actors—including legislators, donors and advocacy groups—now intervene more aggressively in campus affairs, using protests as flash points in larger ideological battles over academic freedom, free speech and institutional neutrality.

    Third, many of today’s most contentious issues—such as foreign conflicts, racial justice and free speech—extend far beyond the authority of any university administration. Unlike past movements that targeted specific institutional policies (e.g., divestment from apartheid South Africa), today’s protests often demand action on global or national issues that university leaders have little power to directly influence.

    1. The Constraints of the University Presidency

    While university presidents are often seen as the face of their institutions, their actual power is far more limited than public perception suggests. Much of their time is spent off campus, engaged in fundraising and alumni relations, rather than in direct governance. This distance often creates a perception—among both students and faculty—that they are out of touch with the daily realities of campus life.

    Moreover, while presidents are expected to be moral leaders, crisis managers and public intellectuals, they operate within institutional structures that limit their ability to enact significant change. The vast majority of academic decisions are made at the department and faculty level, not by the president’s office.

    Their financial resources, while seemingly vast, are often constrained by donor restrictions and endowment policies. And while they are expected to foster dialogue and intellectual engagement, they must also navigate intense political and ideological pressures that make consensus-building nearly impossible.

    The Unwinnable Presidency in a Populist Age of Distrust

    Leading an elite university in a populist era of distrust is an unwinnable job. University presidents are expected to be moral leaders, crisis managers and public intellectuals—yet they wield less power than ever before. They must balance the demands of faculty, students, donors, trustees, politicians and the public, all while navigating an institutional landscape that is more fragmented, more scrutinized and more politically charged than at any point in recent history.

    Between a rock, a hard place and a social media firestorm, university leaders face an impossible equation. Caught between student activists demanding moral clarity, faculty insisting on academic freedom, donors expecting institutional stability and politicians eager to score ideological points, they must navigate a minefield with no safe path forward.

    Every decision, no matter how carefully considered, is met with outrage from one side or another. When every choice is controversial, the safest option is still the wrong one.

    Speaking truth to power is one thing—leading an institution when you are the power, yet have none, is another. A university president’s job isn’t to lead; it’s to survive. The modern presidency is less about shaping the intellectual future of a university and more about managing crises, defusing conflicts and enduring public scrutiny.

    Part fundraiser, part diplomat, part scapegoat, today’s university leader embodies a paradox: prestigious, powerful and profoundly constrained.

    The university presidency is a job where everyone expects everything, but no one is ever satisfied. And yet, the ambitious vie for this job. The challenge for future university leaders is not just to weather the storm but to prove that, even in an era of distrust and division, higher education still has a role to play in the pursuit of truth, knowledge and the public good.

    Reclaiming the Visionary College Presidency: The Legacy of the Big Three B’s

    At a time when the university presidency has become synonymous with crisis management, political crossfire and institutional paralysis, we would do well to reclaim an older vision of academic leadership—one embodied by the Big Three B’s: Derek Bok, William Bowen and Kingman Brewster.

    These men were not just administrators; they were visionaries. They understood that a great university is not simply a collection of departments, endowments and buildings, but a living intellectual community that requires bold leadership, principled decision-making and a deep appreciation for the institution’s unique identity.

    Unlike today’s university presidents, who often appear hemmed in by competing pressures, Bok, Bowen and Brewster exuded a sense of command. They were coalition builders who understood how to navigate the tensions of their time—not by appeasement or retreat, but by articulating a clear and compelling vision for their institutions.

    They did not shy away from controversy; they faced it head-on, using their moral authority and intellectual gravitas to persuade rather than merely pacify. Their leadership was not about survival—it was about transformation.

    The Power of Institutional Identity

    One of the defining strengths of these presidents was their deep understanding of what made their universities distinctive. They did not try to turn their institutions into all-purpose, generic centers of higher learning. Instead, they leaned into their unique strengths and traditions, reinforcing the core values that defined them.

    • Kingman Brewster at Yale championed the arts and humanities, elevating Yale as a beacon of intellectual and cultural leadership. He understood that Yale’s prestige was not just in its research output, but in its commitment to a broad, humanistic education that shaped future leaders in the arts, government and public service.
    • William Bowen at Princeton preserved and reinforced the university’s distinctive commitment to undergraduate education, mentoring and close faculty-student engagement. He saw Princeton as the ideal blend of a research university and a liberal arts college, where students could experience the best of both worlds.
    • Derek Bok at Harvard expanded the university’s reach and redefined its role in shaping society. He recognized Harvard’s unique position as an institution that was not just educating students, but cultivating thought leaders in law, government, business and the sciences. Bok’s presidency was marked by efforts to bring in a broader, more diverse array of scholars and students who were shaping the world outside the academy.

    These men understood that universities are not interchangeable—they have distinctive missions, histories and cultures that must be nurtured, not diluted. They resisted the impulse to make their institutions all things to all people and instead worked to sharpen and deepen their defining strengths.

    Leadership With Gravitas and Moral Authority

    What made the Big Three B’s remarkable was not just their institutional savvy, but their personal presence and sense of moral authority. These were men who commanded respect, not because of their titles, but because they embodied the very ideals their universities stood for. They were not timid bureaucrats, nor were they detached figureheads. They were intellectuals, statesmen and educators who carried themselves with the weight of their institutions behind them.

    More importantly, they were unafraid to make tough decisions and stand firm in the face of opposition. Brewster took a bold stance in support of civil rights and coeducation and against the Vietnam War, even when it made him a target of political backlash. Bowen helped lead Princeton through transformative changes in financial aid and faculty governance, navigating opposition with both decisiveness and diplomacy. Bok spearheaded Harvard’s expansion into applied learning and professional education, while also defending the university’s core commitment to academic freedom.

    Each of these presidents had the ability to thread the needle—to stand up for their principles without alienating key constituencies. They were neither populists nor technocrats; they were strategic leaders who understood how to bring faculty, students, trustees and alumni into alignment around a shared purpose.

    Reclaiming a Lost Model of Leadership

    The contrast between the Big Three B’s and today’s university presidents is stark. Where they projected confidence and authority, many modern university leaders appear cautious and reactive. It’s quipped that their present-day counterparts can’t go to the bathroom without consulting their general counsel. Where the Big Three articulated grand visions for their institutions, many of today’s presidents are consumed by damage control. Where they commanded the respect of faculty and students, today’s leaders often seem disconnected from both.

    Of course, the world of higher education has changed. Universities are larger, more complex and more deeply entangled in political and cultural battles than ever before. But that is precisely why we need a new generation of university presidents who can reclaim the mantle of true leadership.

    The university presidency should not be reduced to a balancing act of donor relations, media messaging and political risk management. It must once again become a platform for vision, courage and institution-building.

    The lesson of the Big Three B’s is clear: Great universities do not thrive under timid leadership. They flourish when they are guided by bold, intellectually rigorous and morally grounded presidents who understand both the weight of their office and the enduring value of higher education. The future of our great universities depends on whether we can find leaders who, like Bok, Bowen and Brewster, embody the very ideals their institutions were meant to uphold.

    Steven Mintz is professor of history at the University of Texas at Austin and recipient of the AAC&U’s 2025 President’s Award for Outstanding Contributions to Liberal Education.

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  • Harvard Faculty, AAUP Challenge Trump Administration’s $8.7 Billion Funding Threat

    Harvard Faculty, AAUP Challenge Trump Administration’s $8.7 Billion Funding Threat

    In what legal experts are calling a landmark case for academic freedom, Harvard faculty and the American Association of University Professors (AAUP) have filed a lawsuit against the Trump administration, alleging unconstitutional attempts to control campus speech and governance through threatened funding cuts.

    The legal action, filed Friday, seeks to block the administration from withholding $8.7 billion in federal funding for Harvard University and its affiliated hospitals after demands that the university implement specific policy changes and restructure its operations.

    According to court documents, the administration’s Joint Task Force to Combat Anti-Semitism issued a demand letter on April 3 outlining “immediate next steps” Harvard must take to maintain its “financial relationship with the United States government.” These demands reportedly extend far beyond addressing antisemitism, including new speech restrictions, elimination of all diversity, equity, and inclusion programs, and mandatory cooperation with the Department of Homeland Security.

    “The First Amendment does not permit government officials to use the power of their office to silence critics and suppress speech they don’t like,” said Andrew Manuel Crespo, Morris Wasserstein Professor of Law at Harvard and general counsel of the AAUP-Harvard Faculty Chapter. “Harvard faculty have the constitutional right to speak, teach, and conduct research without fearing that the government will retaliate against their viewpoints by canceling grants.”

    The lawsuit comes after the task force chair announced on Fox News in March that “the academic system in this country has been hijacked by the left, has been hijacked by the Marxists,” and threatened to “bankrupt these universities” by removing federal funding.

    Harvard professors involved in the lawsuit claim the administration’s threats have already begun to impact academic freedom on campus.

    “The research and teaching of Harvard faculty have already been chilled by the Trump administration’s attempt to coerce the university into changing its curriculum and governing structure,” said Dr. Kirsten Weld, professor of History and president of the AAUP-Harvard Faculty Chapter. “If Trump can threaten to withhold billions of dollars from our colleagues unless we stop teaching about diversity and inclusion, he can make the same threat to try and stop us from teaching about science, his critics, or anything else.”

    The plaintiffs have requested an immediate temporary restraining order to prevent any funding cuts while the case proceeds.

    The AAUP warns that allowing such governmental intrusion at Harvard could set a dangerous precedent for institutions nationwide.

    “Our students and faculty members across the nation are terrified,” said Veena Dubal, AAUP General Counsel. “If the administration’s lawless and unconstitutional attempts to control speech and governance at Harvard are allowed to proceed, then any one of our institutions could be next.”

    Dr. Todd Wolfson, president of the AAUP, characterized the administration’s actions as “an attack on democracy and economic mobility” with harms that “will be so irreparable that they will last generations.”

    At the heart of the case is whether the federal government can legally condition billions in funding on compliance with policy demands that appear to target specific viewpoints and academic content.

    Nikolas Bowie, Louis D. Brandeis Professor of Law at Harvard and secretary-treasurer of the AAUP-Harvard Faculty Chapter, argues there is no legal basis for the administration’s actions.

    “No law in this country permits President Trump to suspend billions of dollars from universities like Penn, Princeton, or Harvard simply because he doesn’t like their policies on transgender athletes, their research on climate change, or the constitutionally protected speech of their students and faculty.”

    Legal experts note that the case could potentially reach the United States Supreme Court, given its significant First Amendment and separation of powers implications.

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  • FIRE and civil liberties groups challenge ‘unconstitutional retaliation’ against Mahmoud Khalil

    FIRE and civil liberties groups challenge ‘unconstitutional retaliation’ against Mahmoud Khalil

    FIRE along with the National Coalition Against Censorship, The Rutherford Institute, PEN America, and First Amendment Lawyers Association today filed a “friend of the court” brief arguing that the jailing of Mahmoud Khalil violates the First Amendment. What follows is the brief’s summary of argument.


    America’s founding principle, core to who and what we are as a Nation, is that liberty comes not from the benevolent hand of a king, but is an inherent right of every man, woman, and child. That includes “the opportunity for free political discussion” as “a basic tenet of our constitutional democracy.” (Cox v. Louisiana). And “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” (Terminiello v. City of Chicago). For these reasons, along with all citizens, “freedom of speech and of press is accorded aliens residing in this country.” (Bridges v. Wixon).

    Secretary of State Marco Rubio, however, is attempting to deport a permanent resident, Mahmoud Khalil, not because the government claims he committed a crime or other deportable offense, but for the seemingly sole reason that his expression stirred the Trump administration to anger. The Secretary claims he can deport Mr. Khalil under a Cold War–era statute giving the secretary of state the power to deport anyone he “personally determines” is contrary to America’s “foreign policy interest.” And he argues this power extends even to deporting permanent residents for protected speech. It does not.

    The First Amendment’s protection for free speech trumps a federal statute. (United States v. Robel). Accepting Secretary Rubio’s position would irreparably damage free expression in the United States, particularly on college campuses. Foreign students would (with good reason) fear criticizing the American government during classroom debates, in term papers, and on social media, lest they risk deportation. That result is utterly incompatible with the longstanding recognition that “[t]he essentiality of freedom in the community of American universities is almost self-evident,” and that “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” (Sweezy v. New Hampshire).

    Secretary Rubio claims (as do all censors) that this time is different, that the supposed repulsiveness of Mr. Khalil’s pro-Palestine (and, as Secretary Rubio alleges, pro-Hamas) views cannot be tolerated. But “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive.” (Texas v. Johnson) (holding the First Amendment protects burning the American flag in protest); see also (Snyder v. Phelps) (holding the First Amendment protects displaying “God Hates Fags” and “Thank God for Dead Soldiers” posters outside a military funeral).

    Allowing the Secretary of State to deport any non-citizen whose views, in his subjective judgment, are against America’s foreign policy interests places free expression in mortal peril. China’s Constitution, for example, provides that “when exercising their freedoms and rights, citizens . . . shall not undermine the interests of the state.” As China’s experience shows, allowing the government to step in as censor when it believes speech threatens the government’s interests is a loophole with infinite diameter. It has no place in America’s tradition of individual liberty.

    The only court to address the deportation provision Secretary Rubio relies upon to deport Mr. Khalil reached a similar conclusion, holding the law unconstitutional. As that court explained, “If the Constitution was adopted to protect individuals against anything, it was the abuses made possible through just this type of unbounded executive authority.” (Massieu v. Reno).

    The “First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.” (Bridges v. California) (invalidating criminal convictions, including of a non-citizen, based on protected speech). Our “liberty-loving society” does not permit deportation as a punishment solely based on expression the government disfavors. The Court should grant Mr. Khalil’s motion.

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  • DOL Files Appeal in Overtime Legal Challenge

    DOL Files Appeal in Overtime Legal Challenge

    by CUPA-HR | March 12, 2025

    On February 28, the Department of Labor (DOL) filed an appeal in Flint Avenue, LLC v. U.S. Department of Labor, which previously led a district court to strike down the agency’s overtime final rule set forth under the Biden administration. The action is the second pending appeal from DOL with respect to cases involving the Biden administration’s overtime rule and may be acting as a placeholder to provide time for the Trump administration to determine how they want to move forward with the Biden administration’s overtime rule.

    Background

    As a reminder, the Biden administration’s final rule implemented a phase-in approach to increasing the minimum salary threshold under the Fair Labor Standards Act (FLSA) overtime regulations. Specifically, the rule increased the minimum salary threshold, effective July 1, 2024, from the previous level of $684 per week ($35,568 per year) to a new level at $844 per week ($43,888 per year). This first increase used the same methodology set by the first Trump administration’s 2019 overtime rule to determine the new salary threshold level. The rule also aimed to increase the threshold a second time effective January 1, 2025; however, the Biden overtime rule was struck down in federal court before the second increase could take effect. This increase would have changed the minimum salary threshold again to $1,128 per week ($58,656 per year). Finally, the rule adopted automatic updates to the minimum salary threshold that would occur every three years.

    Shortly after the Biden overtime rule was published, lawsuits were filed challenging the final rule. These lawsuits resulted in two district court orders to vacate the final rule. On November 15, 2024, a federal judge in the Eastern District Court of Texas ruled to vacate the Biden administration’s FLSA overtime final rule in State of Texas v. U.S. Department of Labor. Similarly, on December 30, 2024, another federal judge in the Northern District Court of Texas ruled to vacate the Biden administration’s overtime rule in Flint Avenue, LLC. Both rulings vacated all components of the rule, meaning both the July and January salary thresholds set under the final rule were no longer in effect and automatic updates to the minimum salary threshold would not take place.

    DOL’s Appeals

    Soon after the federal judge ruled in the State of Texas case, the Biden administration’s DOL filed an appeal. The appeal was filed in the 5th U.S. Circuit Court of Appeals, where it remained through the presidential transition. On February 24, the Department of Labor under the Trump administration requested an extension to file its opening brief in the State of Texas appeal. The 5th Circuit Court agreed to the extension, allowing for opening briefs to be filed by May 6, 2025.

    Soon after, on February 28, DOL filed its second appeal to the 5th Circuit Court in the Flint Avenue case. Both actions may be intended to give time to newly confirmed Labor Secretary Lori Chavez-DeRemer to settle into her new role and determine how the Trump administration will move forward with litigation and the Biden administration’s rulemaking.

    CUPA-HR will continue to keep members apprised of legal updates regarding the overtime regulations.



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  • Solving the continuation challenge with engagement analytics

    Solving the continuation challenge with engagement analytics

    • By Rachel Maxwell, Principal Advisor at Kortext.

    Since the adjustments to the Office for Students’ (OfS) Condition B3: Student outcomes, published continuation rates have dropped from 91.1% in 2022 to 89.5% in 2024 for full-time students on their first degree.

    This drop is most evident for students in four key areas: (1) foundation year courses; (2) sub-contracted and franchised courses; (3) those with lower or unknown qualifications on entry; and (4) those studying particular subjects including Business and Management, and Computing.

    Universities utilising student engagement analytics are bucking this downward trend. Yet, surprisingly, engagement analytics are not mentioned in either the evaluation report or the accompanying Theory of Change document.

    Ignoring the impact of analytics is a mistake: universities with real-time actionable information on student engagement can effectively target those areas where risks to continuation are evident – whether at the programme or cohort level, or defined by protected characteristics or risks to equality of opportunity.

    The [engagement analytics] data you see today is next year’s continuation data.

    Dr Caroline Reid, former Associate Dean at the University of Bedfordshire

    A more complete view of student learning

    The digital footprints generated by students offer deep insights into their learning behaviours, enabling early interventions that maximise the opportunity for students to access the right support before any issues escalate. While data can never explain why a student is disengaging from their learning, it provides the starting point for a supportive outreach conversation. What happens thereafter would depend on what the conversation revealed – what kind of intervention would be most appropriate for the student? Examples include academic skills development, health and wellbeing support or financial help. The precise nature of the intervention would depend on the ecosystem of (typically) the professional services success and support expertise available within each institution.

    Analysing engagement activity at the cohort level, alongside the consequent demand on student services teams, further enables universities to design cohort or institution-wide interventions to target increasingly stretched resources where and when they are needed most.

    [With engagement analytics we have] a holistic view of student engagement … We have moved away from attendance at teaching as the sole measure of engagement and now take a broader view to enable us to target support and interventions.

    Richard Stock, Academic Registrar, University of Essex

    In 2018–19, 88% of students at the University of Essex identified as having low engagement at week six went on to withdraw by the end of the academic year. By 2021–22, this had reduced to approximately 20%. Staff reported more streamlined referral processes and effective targeted support thanks to engagement data.

    Bucking the trend at Keele

    The OfS continuation dashboard shows that the Integrated Foundation Year at Keele University sits 8% above the 80% threshold. Director of the Keele Foundation Year, Simon Rimmington, puts this down to how they are using student engagement data to support student success through early identification of risk.

    The enhanced data analysis undertaken by Simon and colleagues demonstrates the importance of working with students to build the right kind of academically purposeful behaviours in those first few weeks at university.

    • Withdrawal rates decreased from 21% to 9% for new students in 2023–24.
    • The success rate of students repeating a year has improved by nearly 10%.
    • Empowering staff and students with better engagement insights has fostered a more supportive and proactive learning environment.

    Moreover, by identifying students at risk of non-continuation, Keele has protected over £100K in fee income in their foundation year alone, which has been reinvested in student support services.

    Teesside University, Nottingham Trent University (NTU) and the University of the West of England (UWE) all referred explicitly to engagement analytics in their successful provider statements for TEF 2023.

    The Panel Statements for all three institutions identified the ‘very high rates of continuation’ as a ‘very high quality’ feature of their submissions.

    • Teesside’s learning environment was rated ‘outstanding’, based on their use of ‘a learner analytics system to make informed improvements’.
    • NTU cited learning analytics as the enabler for providing targeted support to students, with reduced withdrawals due to the resulting interventions.
    • UWE included ‘taking actions … to improve continuation and completion rates by proactively using learning analytics’ to evidence their approach.

    The OfS continuation dashboard backs up these claims. Table 1 highlights data for areas of concern identified by the OfS. Other areas flagged as key drivers for HEIs are also included. There is no data on entry qualifications. All figures where data is available, apart from one[1], are significantly above the 80% threshold.

    Table 1: Selected continuation figures (%) for OfS-identified areas of concern (taught, full-time first degree 2018–19 to 2021–22 entrants)

    The Tees Valley is the second most deprived of 38 English Local Enterprise Partnership areas, with a high proportion of localities among the 10% most deprived nationally. The need to support student success within this context has strongly informed Teesside University’s Access and Participation Plan.

    Engagement analytics, central to their data-led approach, ‘increases the visibility of students who need additional support with key staff members and facilitates seamless referrals and monitoring of individual student cases.’ Engagement data insights are integral to supporting students ‘on the cusp of academic failure or those with additional barriers to learning’.

    The NTU student caller team reaches out to students identified by its engagement dashboard as being at risk. They acknowledge that the intervention isn’t a panacea, but the check-in calls are appreciated by most students.

    Despite everything happening in the world, I wasn’t forgotten about or abandoned by the University.
    NTU student

    By starting with the highest risk categories, NTU has been able to focus on those most likely to benefit from additional support. And even false positives are no bad thing – better to have contact and not need it, than need it and not have it.

    What can we learn from these examples?

    Continuation rates are under threat across the sector resulting from a combination of missed or disrupted learning through Covid, followed by a cost-of-living crisis necessitating the prioritisation of work over study.

    In this messy world, data helps universities – equally challenged by rising costs and a fall in fee income – build good practice around student success activity that supports retention and continuation. These universities can take targeted action, whether individually, at cohort level or in terms of resource allocation, because they know what their real-time engagement data is showing.

    All universities cited in this blog are users of the StREAM student engagement analytics platform available from Kortext. Find out more about how your university can use StREAM to support improvements in continuation.


    [1] The Teesside University Integrated Foundation Year performs above the OfS-defined institutional benchmark value of 78.9%.

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  • Rethinking the Financial Challenge of English Universities

    Rethinking the Financial Challenge of English Universities

    By Adam Habib, Vice-Chancellor at SOAS University of London, and Lord Dr. Michael Hastings of Scarisbrick CBE, Chair of the Board of Trustees at SOAS.

    The business model of English higher education is broken. We are not sure that this simple fact is sufficiently understood by all stakeholders in higher education. Do not mistake us: we all recognise the serious financial crises that most English universities are confronting. But this is not the same as understanding its causal features and what to do about it. The latest financial report from the Office for Students (OfS), released in mid-November, suggests 72% of English universities will be in deficit by the end of the academic year if they continue as is. It does not suggest much about how to address it. In fact, it does not even ask why the other 28% of universities are not in deficit. Is this because of their historical endowments or their specific student profile, or are they doing something the others are not?

    But the OfS is not the only stakeholder reluctant to ask the hard questions: how we got here and what to do about it. This malady afflicts almost all other stakeholders. Let’s begin with the basics. Almost three decades ago, the British government committed to massifying education and ensuring that at least 50% of their school-leaving population had the privilege of going to university. The challenge was how to pay for it. They introduced fees, first as a small proportion of the actual cost in 2006, and then to cover the entire cost in 2012 (at least for Business degrees, Humanities and the Social Sciences). The popular backlash this generated, especially since almost all universities rushed to implement the maximum permitted fee, led the politicians to subsequently avoid increasing fees in line with inflation. The net effect was that within a few years, the actual cost of university education outstripped the fees.

    The solution followed by most universities was to increase international fees and their intakes of foreign students. To attract more of these students, universities borrowed heavily, built shiny new facilities, expanded their pastoral services and grew their student numbers. This was assisted in part by the removal of student number caps on home students. Costs increased, and to cover these, more income was required, which led to even higher international fees and more foreign students.

    All higher education stakeholders were complicit in this. The Government initially supported this solution because it obviated the need for more government subsidies and enabled foreign currency earnings. Vice-chancellors and higher education executives deluded themselves in thinking that the international postgraduate masters students came to the UK universities because of their institutions’ research reputations, even though survey after survey demonstrated that these students were increasingly attracted by the prospect of employment prospects and the post-study visa. Unions, both academic and professional service ones, acquiesced given that these international fees enabled higher salaries and subsidised greater research time for academics. There was even broader public support as it contained the fees for domestic students.

    Until of course, a new breed of ethnically oriented right-wing politicians mobilised on the chauvinistic instinct of there being too many foreigners in Britain. This first manifested in Brexit, then China and subsequently all foreigner-bashing, and finally visa restrictions on dependents. The net effect was a dramatic fall in applications and enrolment of international students, with the ensuing financial crisis of universities in the UK. A positive spin-off of this state of affairs is that almost all stakeholders now recognise the flimsy fiscal foundation of universities. The negative feature is that it still has not generated an honest reflection and behaviour on the part of all stakeholders or a sufficiently deep deliberation on the business model of higher education in the UK and what to do about it.

    Take, for instance, the stance of government. The Secretary of State for Education announced in the House of Commons on 4 November 2024 the first university fee increase for undergraduate students in eight years. Yet the Chancellor had increased the Employer National insurance a few days before from 13.8 to 15 percent. The net effect is a further loss of £59 million for universities in the UK from the 2025/26 academic year.

    Neither is the debate in universities more imaginative on what to do about the financial crisis and the business model of higher education. University vice-chancellors and Universities UK have recognised the need to revert to greater public funding for higher education, although there is a broad recognition that this is an unlikely solution in the near future given the fiscal crisis of the state. They have suggested through individual vice-chancellor advocacies that universities would require the financial equivalence of £12,000 fees, but again, almost all recognise the political challenge of achieving this during a cost-of-living crisis. The reluctant fallback back? A retreat to international student fees by retracting or reforming the visa restrictions, thereby allowing for further increases in income from foreign students.

    But this is just not a feasible solution for the long term. Higher education in the UK has priced itself out for ordinary international students looking solely for a higher education qualification. The only rationales for postgraduate master’s students accessing UK universities, given their high-cost structure, are either post-study employment or the learning of a specific qualification not available in alternative higher education settings. The former is increasingly becoming politically unfeasible, and the latter is not a sufficiently large market to financially sustain British universities.

    This is in addition to the moral and commercial challenges of this business model. As we have suggested elsewhere, there should be serious objections to this model, which is effectively directed towards sucking out resources from countries far more impoverished than the UK, to essentially cross-subsidise domestic citizens. Moreover, it accelerates the brain drain, weakening institutional capacities and human capabilities in the majoritarian world at precisely the moment when such societies require an enhancement of capabilities to address the local manifestations of transnational challenges like climate change, pandemics, food insecurity and war.

    Where to go from here, then? First, there is an urgent need for an honest conversation led by government without any smoke and mirrors on the fiscal latitude available to it and the consequences thereof for the financing of higher education. Second, there is a need for a thorough reflection on what has fiscally worked, and what has not in the recent past on the management and executive stewardship of universities in the UK. Third, there is a need for an honest discussion in universities on the fiscal viability of excessively small classes and unduly low staff-student ratios, 40% research time for all teaching and research contracts, and the importance of institutional differentiation in mandates and how these should speak to the former two elements. Finally, we need to think through the limits of cross-subsidising from international student fees and what new opportunities are opening up globally for fulfilling our institutional mandates.

    One opportunity, that has not been sufficiently explored by British universities, is how to assist in the education and training of hundreds of millions of young people in the majoritarian world. This is an urgent necessity not only for the economic development of these societies but also for enabling societies across the world to manage the transnational challenges of our time, without which we may not survive as a human species. Obviously, this will not be possible on the existing cost structures or business models of higher education. But partnering with universities in the Global South, involving the joint development of curricula, co-teaching and co-assessment, could bring down cost structures of higher education. This could then feed into more reasonable fees being charged, thereby opening up new higher education markets for British universities. Cost structures could also be reconsidered in relation to scale. The more students there are within a program, limited to pedagogical requirements, the more cost per student is reduced, and the more competitive fees can become. New technologies involving online teaching and global classrooms, many of which were pioneered for our own students during the Covid-19 Pandemic, can make this equitable transnational teaching even more feasible.

    Some forms of transnational teaching are already underway in UK universities. But these often take the form of online learning, overseas campuses and franchise models of higher education, all of which are only directed at obviating the financial challenges of British universities. While we would be reluctant to take rigid positions against these models – they may indeed be relevant in certain contextual circumstances – we do hold that the equitable partnership model identified above holds the pedagogical benefit of enabling learning that is both globally grounded and locally relevant. It also does not pit the financial security of British universities against that of universities of the majoritarian world. Essentially, these equitable teaching partnerships can pioneer one element of a new business model that enhances collaboration and mutual benefit for universities in the UK and the majoritarian world.

    Such a model of higher education could also become part of the soft power arsenal of the UK. Increasingly, government has broached the idea of a global Britain. This would be a Britain recognised as a collaborative partner of other nations, enabling them to achieve their national objectives, while enabling itself to be economically competitive and socially responsive to both its own citizens and its international obligations. An equitable orientation to its higher education system would assist this strategic national agenda.

    We are by no means suggesting that equitable transnational learning should replace all other forms of teaching in UK higher education. This would be unrealistic and, frankly, would violate the responsibility of British universities to be nationally responsive. Instead, we recommend that in the pursuit of a financially sustainable higher education system, a diverse set of income strategies – subsidy, domestic fees, international fees, ODL, executive education and equitable transnational educational partnerships – is required. This final strategy not only opens up a new higher education student market at a different price point but also enables us to square our imperative to be financially sustainable with our commitment to be socially and globally responsive.

    The strategic challenge of managing higher education institutions in the contemporary era is the management of tensions between competing imperatives. It also requires thinking outside the box, innovating and finding new markets, and servicing these at new price points, while continuing to meet the social obligations implicit in the mandate of universities. This is what we believe is sometimes missing from the deliberations on making British universities financially sustainable. The debate can only be enriched and the recommendations made more robust if we are prepared to think beyond what we are comfortable with.

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