Tag: Newly

  • All about Scotland’s newly passed Tertiary Education and Training Act

    All about Scotland’s newly passed Tertiary Education and Training Act

    For the Tertiary Education and Training (Funding and Governance) (Scotland) Act, the journey from review to consultation to bill to law has been a long one – but it’s finally complete.

    As the dust settles, we can heuristically chop its protracted passage up into three stages according to where the policy focus was.

    First came the Withers review and its push to reconfigure the funding body landscape to promote coherence, which resulted in the accumulation of new responsibilities for the Scottish Funding Council, and the corresponding diminution of Skills Development Scotland’s remit in a way that was at times quite fractious.

    If you’d responded to the 2024 consultation on funding body reform, you could be forgiven for assuming that this shake-up would have continued to be the central area of prominence as the legislation was introduced. It’s true that plenty of parliamentary time and written evidence was taken up with the mechanics and technicalities of moving staff and capabilities from one arm’s length body to another, but for much of last year the real action wasn’t around the SFC/SDS/SAAS moving parts – rather, it related to questions of sector financial oversight and how the legislation could better speak to these.

    Former higher education minister Graeme Dey kicked this phase off last January by musing that the bill could beef up the funding council’s “powers of intervention”. In light of the crisis at the University of Dundee, and emerging issues elsewhere, it became politically tricky to press forward with a bill that could be potentially criticised as rearranging deckchairs (there was no great cross-party love for it – it later squeezed through stage one with support from the Scottish Greens, who explicitly said they wanted it to progress so that they could append stuff to it later).

    So when the legislation was published, we got some additional but still fairly tenuous new powers for the SFC. These included greater scope to conduct the investigations known as “efficiency studies”, and the ability to issue written recommendations (possibly publicly, but I wouldn’t hold your breath) and guidance that governing bodies will need to “have regard” to. Plus there will be a responsibility on funded education bodies, including universities, to proactively notify the funding council in the event of “certain developments”. But exactly what these will be is left to secondary legislation – it’s likely to include job cuts and specific financial thresholds, but the process has been left convoluted and it’s clearly not a system that’s going to be springing into action any time soon.

    While the desire to use the bill to speak to the government’s job of monitoring the financial health of the system has not gone away, it’s also been clear since the autumn that ministers didn’t want to go too far either, shooting down amendments on issues like governance reform (as well as proposals on executive pay caps, student union funding, and mental health).

    Rather, the final run-up to the legislation’s passage at stage three was dominated by both opposition MSPs and the government adding other bits and pieces to the legislation in a series of compromises (we can but speculate on how the reshuffling off of Graeme Dey led to more compromising than might have been the case otherwise).

    As a result, the headline measures that the newly passed Act will bring about feel quite distinct from where we were at the start. Let’s take a look how it changed.

    A national strategy

    The bill’s long title was originally as follows:

    An Act of the Scottish Parliament to make provision about the functions and governance of the Scottish Further and Higher Education Funding Council; to make provision about financial support for students in further and higher education; and for connected purposes.

    Following stage three, it’s now

    An Act of the Scottish Parliament to make provision about a national funding strategy for tertiary education, skills and apprenticeships; to make provision about the functions and governance of the Scottish Further and Higher Education Funding Council; to make provision about financial support for students in further and higher education; and for connected purposes.

    You get the sense that the repeated questioning in Holyrood of the need for this legislation – at a time of serious challenges for Scotland’s universities, colleges and apprenticeship system – has played a role here. The Act is now squarely about funding, even if it has done so in a way that leaves the actual content until after the election.

    Scottish ministers will now be obliged to prepare a national funding strategy, specifying needs, priorities and outcomes for different aspects of the tertiary system. Consultation with learners, trade unions, employers and education bodies will be mandatory. Regular progress reports are stipulated. In the Scottish Parliament, higher education minister Ben Macpherson said that having a strategy will ensure that funding decisions are based on an “even more robust understanding” of skills needs.

    The language of “as soon as reasonably practicable” gives leeway for this to appear after the ongoing Future Framework for Universities project, and to be informed by its findings. Which is not to say that the Scottish higher education sector is necessarily thrilled about it – in the stage three debate, we heard that Universities Scotland has expressed concerns about autonomy. The minister was at pains to stress that for universities the strategy will not direct funding to specific provision.

    Fair work, GBV, and access

    Last week – a cynic might suggest there was a final push to get the legislation over the line – the Scottish government announced that the bill would enable action on both fair work requirements and prevention of gender-based violence on campus. Something similar happened ahead of the stage two vote, where provisions for data sharing in support of the access agenda were unexpectedly introduced, despite previous indications that the Scottish government was reluctant to take these forward in the current parliamentary session.

    The fair work announcement – an agreement between the SNP and the Scottish Greens – will see colleges and universities expected to adopt further Fair Work First criteria by April 2027, including no inappropriate use of zero hour contracts, flexible and family-friendly working practices, and action on workplace inequalities, all of which are currently only encouraged. The announcement to Parliament does note that where a case is made for more time is required for an institution to make the changes, this may well be accepted.

    Including a condition of funding around preventing gender-based violence was first proposed at stage two in a slightly different form, supported by campaign group EmilyTest. This didn’t pass, but new Scottish government amendment 29 will enable the SFC to impose a condition of funding on education bodies around the prevention of gender-based violence, both in terms of taking action to prevent gender-based violence against staff and students, and in reporting on action taken. Before issuing guidance, the funding council will be required to consult both campaign groups and education bodies.

    All these measures – promoting fair work, enabling data sharing, and preventing gender-based violence – got a shout-out in the minister’s closing speech as among the substantial benefits the bill will bring. All of them have quite a long way to go as well. On the free school meal data sharing question, it’s been widely suggested that the limited nudge the idea gets in the legislation is a long way from ironing out all the technical barriers.

    The SFC and its role

    During the legislation’s passage the government hinted it was open to renaming the Scottish Funding Council to reflect its expanded role. It hasn’t happened, but Ben Macpherson still told Holyrood he was open to the idea.

    Stage three did, however, see amendments to the bill which will see the Scottish Funding Council board expand, with a new maximum size of 16 members appointed by ministers, up from 14. The government also put forward, or accepted, some degree of stipulation on who those board members should be – under pressure from other MSPs – though it ended up couched in the language of “have regard to the desirability of” rather than a prescription. This will now include learner representatives, SFC employee representatives, and education sector staff representatives.

    We explored in our original write-up how the legislation seeks to give the funding council new powers, up to a point, to monitor and influence the education bodies it funds (and there’s a summary above). While during parliamentary passage many MSPs sought to push for further duties and means of intervention, the Scottish government largely saw these off, arguing for the importance of university autonomy and the purported risks around Office for National Statistics public sector classification.

    But there were a few small changes along the way, for example the insertion of powers for the SFC to secure the carrying out of an independent examination into the financial sustainability or financial governance of an education provider it funds, and the remit of funding council “efficiency studies” has been extended to consider the needs and interests of staff as well as students.

    An opposition amendment that will require the SFC to conduct an annual report on the financial sustainability of the further and higher education sector was accepted by the government – some would say the funding council already does this, but now it’s in the legislation. This was made more interesting by a rival opposition amendment which sought to make this an independent review of university financial health (it was suggested that Audit Scotland would take the lead). However, this was shot down.

    Apprenticeships and future battles

    For all that MSPs have used the bill’s passage as an opportunity to probe the Scottish government’s stewardship of the university sector – and it shouldn’t be underestimated how much the legislation’s eventual form has been shaped by reaction to funding crises and job losses – the issue that has been most prominent throughout Holyrood debate has been about shifts in apprenticeship responsibilities and the wider question of how much funding goes to this kind of post-16 provision.

    Amendments requiring the Scottish government to publish an account of how apprenticeship levy consequentials are being spent, or to introduce an apprenticeships guarantee, or ringfence funding, or to specify a commitment to foundation apprenticeships, were all voted down. But the question of Scotland’s level of apprenticeship starts – and how the government deploys levy money, to the extent that it can be said to – has continued to grow in importance as perhaps the pre-eminent attack line on the SNP from opposition parties in post-compulsory education policy.

    There’s an important takeaway for the sector here, in how much political pressure is being brought to bear on boosting apprenticeship numbers, rather than university degree places. It’s already an argument the sector is trying to get ahead of – an article from Universities Scotland today makes the case that universities want to do more in the graduate apprentice space, and are being held back by a lack of flexibility.

    The tertiary bill, in the form it eventually ended up in, puts new duties on universities, as well as taking some tentative steps which – if followed through in implementation – could contribute to them being better places to work and study in. It also heaps more responsibility for overseeing the disparate parts of the system on the funding council, while introducing reforms to its corporate structure which will inevitably take time to process.

    It even, via the last minute changes, commits the next Scottish government to spelling out its approach to funding. But it doesn’t speak to the quantum of that funding, and for universities it’s never been clearer that there exists both growing financial pressures elsewhere in the tertiary space, and growing political pressure to pay attention to areas outwith higher education, an issue that will grow in prominence in a likely more divided and certainly more unpredictable Holyrood after May’s elections.

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  • Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

    Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

    In Free Speech Coalition v. Paxton, the U.S. Supreme Court broke new ground in applying relaxed First Amendment scrutiny to state-imposed burdens on lawful adult access to obscene-for-minors content. The decision appeared outcome-driven to uphold laws that require websites with specified amounts of sexually explicit material to verify users’ ages. However, the Court indicated the holding applies only “to the extent the State seeks only to verify age,” such that, if handled in a principled manner, FSC v. Paxton should have relevance only for speech to which minors’ access may be constitutionally restricted.

    FSC v. Paxton involved Texas HB 1181’s mandate that online services use “reasonable age verification methods” to ensure those granted access are adults if more than a third of the site’s content is “sexual material harmful to minors,” which the Court treated as content First Amendment law defines as “obscene for minors.” If an adult site knowingly fails to age-verify, Texas’ attorney general may recover civil penalties of up to $10,000 per day, and $250,000 if a minor actually accesses pornographic content. HB 1811 is one of over 20 state adult-content age-verification laws recently passed or enacted.

    Obscenity is among the few categories of speech the First Amendment doesn’t protect. In 1973’s Miller v. California, the Court defined obscenity as speech that (1) taken as a whole appeals primarily to a “prurient interest” in sex (i.e., morbid, unhealthy fixation with it); (2) depicts or describes sexual or excretory conduct in ways patently offensive under contemporary community standards; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court has limited the test’s scope to what it calls “hardcore pornography.” Material that is “obscene for minors” is that which satisfies the Miller test as adjusted to minors. Sexually explicit material can thus be obscene for minors but fully protected for adults.

    Under these tests, the government may ban obscene speech and restrict access by those under 18 to speech that is “obscene for minors,” but it cannot cut off adults’ access to non-obscene sexual material.

    It’s long been accepted that, to access adult, potentially obscene-for-minors material in the physical world, showing identification to prove age may be required. So, a law requiring ID to access such content online might seem analogous on its face.

    But online age-verification imposes risks physical ID checks do not. An adult bookstore clerk doesn’t save a photocopy of your license or track the content you access. Nor will hackers, therefore, try to access the ID. These are just some of the reasons surveys consistently show a majority of Americans do not want to provide ID to access online speech — whether adult material or other content, like social media.

    Texas’ HB 1181 is similar to two federal statutes the Supreme Court invalidated around the turn of the millennium. In 1997, the Court in Reno v. ACLU unanimously struck down portions of the Communications Decency Act that criminalized transmitting “obscene or indecent” content. And in 2002’s Ashcroft v. ACLU, it considered whether the Child Online Protection Act violated the First Amendment in seeking to prevent children’s access to “material harmful to minors” in a way that incorporated age verification.

    For decades, the Court has held statutes that regulate speech based on its content must withstand judicial review under strict scrutiny, which requires the government to demonstrate that the law is necessary to serve a compelling government interest and is narrowly tailored to achieve it using the “least restrictive means.” For laws restricting access to online speech, the Court held the laws in Reno and Ashcroft unconstitutional because they failed strict scrutiny. These cases followed in the footsteps of Sable Communications vs. FCC (1989) and United States v. Playboy (2000), in which the Court applied strict scrutiny to invalidate laws governing adult material transmitted by phone and on cable television stations, respectively.

    But in FSC v. Paxton, the Court subjected Texas’ age-verification law for online adult content to only intermediate scrutiny. Under this standard of review, a speech regulation survives if it addresses an important government interest unrelated to suppression of speech, directly advances that interest in a direct and material way, and does not burden substantially more speech than necessary. The Court justified applying a lower level of scrutiny on the ground that minors have no First Amendment right to access speech that is obscene to them. Accordingly, it reasoned, even if adults have the right to access “obscene for minors” material, it is “not fully protected speech.” From there, the Court concluded that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” And it upheld the Texas law under intermediate scrutiny, concluding the regulations only incidentally restrict speech that can be accessed by adults.

    The upshot is, going forward, it will be easier to justify laws restricting minors’ access to off-limits expression even if the law burdens adults’ access to material that is otherwise lawful for them.

    At the same time, the majority opinion sought to limit the type of content that can be restricted only to material that meets the legal definition of “obscene-for-minors” material, and not anything that might be considered generally inappropriate.

    As the Court held in Brown v. Entertainment Merchants Assn. (2011), “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” And in Reno, which involved similar attempts to limit provision of online content to minors, the Court held the government could not ban “patently offensive” and “indecent” (but not obscene) material for everyone in the name of protecting children.

    Free Speech Coalition should not be read as approving age verification laws for online speech generally that do not specifically target “obscene for minors” material. Its narrow focus will not support the recent spate of social media age-verification laws that have met significant judicial disapproval. Such laws have been enjoined in Arkansas, Mississippi, California, Utah, Texas, Ohio, Indiana, Florida, and most recently last week, when a federal court held Georgia’s version “highly likely [to] be unconstitutional” because it interferes with minors’ rights “to engage in protected speech activities.”

    Thus, properly understood, FSC v. Paxton should have limited implications — including that it shouldn’t extend to general age-verification laws in the social media context.

    The risk, of course, is that governments will seek to leverage FSC v. Paxton decision beyond its limited holding, and/or that lower courts will misuse it, to justify prohibiting or regulating protected speech other than that obscene as to minors. In defending laws that implicate the First Amendment, the government often argues it is regulating only conduct, or unprotected speech, or speech “incidental” to criminal conduct.

    Courts for the most part have seen through these attempts at evasion, and where a speech regulation applies based on topic discussed or idea or message expressed, or cannot be justified without reference to its function or content, courts apply strict scrutiny. Under FSC, however, would-be regulators have another label they can use — “partially protected speech” — and the hope that invoking it will lead to intermediate scrutiny.

    Only time will tell if the Court will keep the starch in its First Amendment standards notwithstanding what should be the purple cow of FSC v. Paxton.

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  • Newly Updated CUPA-HR Data Shed Light on Trends in Representation and Pay Equity in the Higher Ed Workforce – CUPA-HR

    Newly Updated CUPA-HR Data Shed Light on Trends in Representation and Pay Equity in the Higher Ed Workforce – CUPA-HR

    by Julie Burrell | January 22, 2024

    Progress in both representation and equitable pay for women and people of color remained sluggish in most roles on college and university campuses in academic year 2022-23, according to the newest data. Through several interactive graphics representing years of research, CUPA-HR highlights the progress that has been made and the disparities that persist. The data track gender and racial composition as well as pay of administrative, faculty, professional, and staff roles, collected from CUPA-HR’s signature surveys.

    While the representation of women and people of color across all roles has steadily increased, inequity remains, especially when it comes to compensation for women and people of color. However, there were some notable areas of progress when it comes to compensation. Asian women and men of color (except for Native American/Alaskan Native men) in administrative roles saw better pay equity than most other groups.

    Administrators

    The share of racial and ethnic minorities in administrative roles continued to grow over the past decade, but gaps in both representation and pay remained steady. This is especially true for women of color, who represented less than 11% of these roles and, for the most part, received lower salaries than White men.

    In 2022-23, people of color made up 18.7% of administrators, up from 12.9% in 2011-12. Although the proportion of people of color in higher ed administrator positions grew steadily over the last decade, these increases have not kept pace with the rate at which minorities are obtaining graduate degrees.

    No improvement was shown in pay disparities for most women administrators. All female administrators except for Asian women received lower salaries than White men. Conversely, men of color, except for Native American/Alaskan Native men, were paid salaries greater than those of White men.

    The Administrators in Higher Education Survey collects data on administrator positions that manage a higher ed institution or a division within it.

    See the Administrators Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics, as well as data broken out by CEO, provost and chief HR officer.

    Faculty

    There are two notable findings regarding faculty composition. First, more women faculty were represented in non-tenure-track roles than in tenure-track roles in 2022-23. Second, with each increase in rank, the proportions of women faculty and faculty of color decreased for both tenure-track and non-tenure-track faculty. Taken together, this means that women were over-represented in the lowest-paying and lowest-ranking positions.

    Pay gaps within rank persist, particularly for women faculty at the professor level, regardless of tenure status. These gaps are most notable for female professors of color in non-tenure-track positions. Pay gaps for assistant and associate professors have narrowed over time, particularly for tenure-track faculty.

    The factor that most impacts faculty pay is promotion to a higher rank, which is often the only time faculty receive significant increases in salary. When there is bias in promoting women and faculty of color to successive ranks, as our data continued to show, this results in career earnings gaps that far exceed what is often detected in pay equity studies within rank for a given year.

    The Faculty in Higher Education Survey collects data on tenure-track faculty positions and non-tenure-track teaching faculty positions.

    See the Faculty Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Professionals

    In academic year 2022-23, women of all races and ethnicities were paid less than their male counterparts in professional roles, while women’s representation increased from 58% to 61% across all professional positions since 2016-17. The growth is due to slight increases in the representation of women of color, from 13.1% in 2016-17 to 15.7% in 2022-23.

    Representation by gender and race/ethnicity varied widely by position. Human resources had the greatest share of women professionals, with 82% being women, including 28% women of color. Information technology had the lowest percentage of professional women (27%), and librarians and development/fundraising professionals had the lowest representation of professionals of color (14%).

    While pay was more equitable for most groups (apart from Hispanic/Latina women and men of two or more races), pay disparities persisted. Women of all races and ethnicities were paid less than their male counterparts. In addition, Hispanic/Latino men, Native Hawaiian men, and men of two or more races were paid less than White men.

    The Professionals in Higher Education Survey collects data on positions in specific functional areas in higher ed institutions, such as academic or student services, that usually require a baccalaureate degree.

    See the Professionals Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Staff

    Staff roles continued to have a higher representation of people of color than any other higher ed employee group last year. Staff also continued to be the lowest-paying positions in higher ed, with women particularly hard hit by pay disparities.

    In 2022-23, women of color represented about 19% of all higher ed staff, and men of color represent about 13% of all higher ed staff — a modest increase since 2016-17. Skilled craft employees were the least racially diverse, a finding that has persisted across the past six years. Notably, skilled craft staff are among the highest-paid staff positions.

    Since 2016-17, women were paid consistently and considerably less than White men. Pay equity for American Indian/Alaska Native women, Asian women, and Native Hawaiian/Other Pacific Islander women was better in 2022-23 than in 2016-17. Pay equity was the same or worse in 2022-23 than in 2016-17 for Black women, Hispanic/Latina women, women of two or more races, and White women. Men of color fared considerably better than women of color when it came to pay equity.

    The Staff in Higher Education Survey collects data on positions that are generally non-exempt and do not require a college degree.

    See the Staff Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    CUPA-HR Research

    CUPA-HR is the recognized authority on compensation surveys for higher education, with its workforce surveys designed by higher ed HR professionals for higher ed HR professionals and other campus leaders.



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