Tag: October

Focus Friday: October 24 | HESA

Hi everyone,

Tiffany here.

A quick reminder that there is a Focus Friday session today (October 24) from 12:30-1:30pm Eastern on International Student Enrolment.

I’ll be joined by Victor Tomiczek (Director of International Recruitment and Global Partnerships at Cape Breton University) and Eric Simard (Director of Fanshawe International and former Director of International Recruitment and Market Development at Fanshawe College). We’ll be discussing past, current, and expected future trends in international student recruitment, enrolment, and engagement.

If you haven’t registered yet, it’s not too late. Register here.

Looking Back

Two weeks ago, we gathered for a conversation that hit close to home: What does the student experience look and feel like today?

I was joined by three people who live and breathe these questions every day: Wasiimah Joomun (Canadian Alliance of Student Associations, a federal student advocacy organization for college, university and polytechnic students), Brendan Roberts (Students Nova Scotia), a provincial level student advocacy organization for university and college students), and Olamipo Ogunnote (Ontario Student Voices, a provincial advocacy organization for college students). Together, they painted a vivid picture of how students are navigating post-secondary life in 2025. What we heard was both sobering and hopeful.

Wasiimah reminded us that the purpose of post-secondary has shifted. Students aren’t coming to explore anymore; they’re coming to survive. “We’ve turned education from a space of discovery into a checklist for employability,” she said. Costs are rising, pressures are mounting, and the system is asking students to thrive in conditions it wasn’t built to support. “Students are no longer exploring their interests; they’re trying to match what the labour market needs” she said.

Brendan spoke about the ripple effects of affordability on mental health and belonging. From housing, food, transportation, all of it weighs heavily. “You can’t build a community for someone,” he said, “but you can give them the tools to foster it themselves.” Students need the chance, and support, to create their own networks, not just attend the ones we design for them.

Olami brought the conversation to Ontario’s college sector, where students are juggling work, caregiving, and coursework, often all in the same day. He shared the story of one student finishing an eight-hour shift, racing home to her kids, and starting her assignment at midnight. “Resilience,” Olami said, “shouldn’t be about surviving hardship. It should be about thriving with opportunity.” Olami added to the piece on community with a great comment that has stuck with me since our conversation, “real community doesn’t come from infographics, it comes from matching the reality of students’ lives.”

Across all three perspectives, the thread was clear: affordability touches everything. Forty percent of students skip meals. One in four struggle to pay rent. One in five use food banks. Four percent have experienced homelessness. Students are still choosing education, but they’re not sure if their institutions and their governments through investment are choosing them back.

And yet, there’s optimism. Students still believe in the value of learning. They want to help shape institutions that see them not only as learners, but as people with families, jobs, and ambitions that stretch far beyond the classroom.

You can catch the full conversation here: https://www.youtube.com/watch?v=ywcHrBEwA-M.

Looking Ahead

On the next Focus Friday, we will be covering the hottest topic of that week: the Federal Budget. What happens, what it means, and what the early reactions to it are. That conversation happens on November 7th, and registration is already open (see below, in a big green box).

In the meantime, keep sharing your ideas in the registration form or reach out anytime at [email protected].

I’m looking forward to seeing many of you this afternoon, and again in two weeks.

Cheers,

Tiff

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October 24, 2025
The Fifteen: October 17, 2025
Welcome to The Fifteen, a global round-up of the stories animating higher education institutions and systems around the globe. Let’s get to it.
1. The biggest story in world higher education this past couple of weeks has certainly been “The Compact”, a deal offered by the Trump administration on October 1 to nine large research institutions (some public, some private). Apparently inspired by the work of Trumpian billionaire Marc Rowan, the proposed deal would see institutions agree to hand control of admissions to the Trump administration, transform or abolish institutional units the disparage or belittle Conservative ideas (not defined), abolish any use of race or gender criteria in hiring, adopt a standard of “institutional neutrality” which prevent all employees from speaking in public about “societal and political events”, fight against grade inflation, freeze tuition for five years, provide free tuition in the sciences if their endowment is over $2M/student, limit foreign enrolment to 15% of the student body, all in return for…something? The Compact isn’t clear, but it certainly suggests that universities’ existence as tax-exempt entities, their ability to receive research funding, recruit foreign students, and eligibility for student aid programs will all be harmed if they don’t sign the deal. The excellent Brendan Cantwell of Michigan State University described the deal as “rotten”, the Dean of Law at Berkeley Erwin Chereminsky called it “extortion”, while UCLA professor Joseph Fishkin noted that it’s an attempt to “replace the law with the deal”. At the time of writing, none of the nine institutions had accepted the offer, though one (MIT) had outright rejected it. In response to MIT’s rejection, Trump made an open offer to all institutions to sign the Compact. Republican legislatures in some states are likely to push their state-run institutions to sign the deal; meanwhile the Democratic governor of California and the Democratic legislature of Virginia have both signaled financial consequences to universities in their state that do sign on to the compact.
2. Tuition fees are starting to become a big issue in Europe. The Wallonie-Bruxelles government in Belgium, under serious financial pressure, is raising tuition fees (known as “minerval”) by about 40% to just under €1200/year. And further south, opposition is mounting to the Swiss government’s proposal to double tuition fees (to a little over €3000 per year).
3. Back in 1999, former Prime Minister Tony Blair committed the UK to a goal of 50% of young people being able to access university. Current Prime Minster Keir Starmer has backed away from that goal, saying the target is “not right for our times”. He wants a new target which involves more students in skilled vocational programs (which is interesting because that sector is even more poorly-funded than universities).
4. India continues to open up to global branch campuses. Last week, it announced approvals for another nine UK institutions to open in the country as well as another three from Australia. Canada, as usual, is nowhere to be seen because – in our typical fleece-addled way – we expect everyone to come to us.
5. Vietnam is continuing to go full speed on modernizing its university system. The Politburo recently asked the Ministry of Education to draw up plans to create three to five “world class” institutions, and over 140 institutions have been put on notice that they may end up being merged to create a system of fewer, stronger universities.
6. Down in Australia, the University of Sydney has become the first major research-intensive university in the world to have a student body which is 51% international students. I’m sure this will have no effect on the ongoing debate about student visas.
7. Iran has been ramping up the number of international students it hosts as well, mainly from neighboring countries like Pakistan and Iraq. However, these students are not always welcome. Earlier this month, protests erupted accusing Iraqi students of being in league with Iranian government militants and of harassing female students.
8. This chart showing monthly academic salaries across Africa has been circulating quite a bit in Nigeria this past few weeks. It appears to stem from this story from a Nigeria Tribune journalist, and it looks right-ish to me, though I suspect it is not including various forms of allowances and per diems that would tend to equalize the results a bit, or making distinctions between public and private institutions. With the academic staff union gearing up for yet another strike, the finding that Nigeria is dead last in salaries is grist for the mill.
9. Brazil broke the 10M mark in national enrolments in 2024, making it the fourth-largest higher education system in the world (behind China, India and the US, but well clear of Indonesia and Turkey). More interestingly: over 50% of enrolments are online and presential learning numbers are actually in decline. Meanwhile in Mexico, enrolments in polytechnic and vocational programs have reached an all-time high.
10. Nature published a special issue on universities. Parts of it are free online, but you may find it worthwhile to spend the $30 for the full issue (it’s good!)
11. As reported in previous editions of The Fifteen, Hong Kong is going ahead with raising the permissible “non-local” portion of the student body to 50%. There have been two developments in this story in the past couple of weeks. First, the government is making it clear that it does not want the new numbers to come entirely from the mainland (we’ll see how the mainland feels about that soon, I guess). Second, the government is actually planning an entirely new “University Town” to accommodate the new influx. Meanwhile, Hong Kong is celebrating being the only city in the world with five universities in the Times Higher Education ranking’s top 100.
12. Two countries are experimenting with new degree lengths. Turkey is now permitting universities to offer three-year Bachelor’s degrees, but only to “academically elite”, which I assume means some kind of advanced placement system. Meanwhile, in Japan, there is a move to approve five year joint Bachelor’s-Master’s degrees.
13. Saudi Arabia has a rich cultural history but when it comes to education; it has tended (like most Arab countries) to focus more heavily on science and engineering. Now, however, it is opening a new University of the Arts in Riyadh. It is starting out just in the fields of music, film and performing arts, but has plans to expand into architecture, culinary arts, heritage studies, cultural management, literature, and fashion.
14. The Times Higher Education had a piece on Chinese study abroad numbers collapsing by 2040, posing “an existential threat to institutions worldwide”. It’s an odd piece. Yes, since 2018 births in China have been plummeting, meaning collapse in overall youth (18-21) numbers sometime around 2036-38. But current youth numbers are well below where they were 20 years ago, and yet, studying abroad is much more common. Demography is not destiny.
15. This one is from earlier this summer when the blog was on hiatus, but I thought it was worth resurfacing. Somebody in Beijing decided to make some money by selling bottled water allegedly from Weiming Lake on the Beida campus. “Gazing at the water daily can boost morale, enhance intelligence and significantly increase emotional intelligence,” the sellers said, transparently capitalizing on students’/parents’ anxieties during the gaokao season.
And that’s the mid-October edition of the Fifteen. See you back here on Hallowe’en for the next edition.

The blog is off next week, but you can still join Tiffany MacLennan for Focus Friday on October 24 (they’ll be chatting about international student enrolment).
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October 17, 2025
Focus Friday: October 10 | HESA

Hi everyone,

Tiffany here.

A quick reminder that there is a Focus Friday session today (October 10) from 12:30–1:30pm Eastern on the Student Experience.

I’ll be joined by Wasiimah Joomun (Executive Director, Canadian Alliance of Student Associations), Brendan Roberts (Executive Director, Students Nova Scotia), and Olamipo Ogunnote (Director of Advocacy and Strategic Partnerships, Ontario Student Voices) for a conversation on student experience—from campus culture and communication to what feels most different about being a student today.

If you haven’t registered yet, it’s not too late. Register here.

The format is simple: we’ll start with a few questions to our invited guests, then open the floor for a coffee-chat style discussion. Bring your ideas, hang out, and learn something new.

Looking Back

Two weeks ago, we launched our first Focus Friday with a big question: What will Canada’s post-secondary system need to look like to thrive by 2035?

I was joined by Jackie Pichette from RBC Thought Leadership and Sunny Chan from the Business + Higher Education Roundtable (BHER), two people who’ve spent the past few months travelling the country with us, listening to hundreds of ideas about the future of higher ed. Together, we tried to pull those threads into a single conversation about where we go next.

A few themes stood out:

Both Jackie and Sunny agreed that Canada’s post-secondary system has to get much more comfortable with change. As Sunny put it, we’re still “a little scared of big changes.” From funding models to internal governance, we need more room, and more courage, to experiment. Jackie imagined a future where the morning news is full of stories about new programs and partnerships instead of program cuts. “I hope ten years from now I hear stories about innovation, not layoffs,” she said.

That optimism came with some realism, too. Jackie talked about how Canada’s national priorities such as defence, AI, and energy, depend on colleges and universities producing the talent to match. Right now, she said, the gap between what’s needed and what’s being trained is wider than it should be.

Sunny offered the employer perspective. Work-integrated learning has gone from a nice-to-have to an expectation, but the challenge now is building lasting partnerships instead of one-off placements. “The most successful collaborations,” she said, “aren’t projects with an end date—they’re embedded relationships.”

Another topic that kept coming up was AI. Jackie argued that AI literacy should be treated like critical thinking—something every student gains, regardless of discipline. Some institutions, like Ohio State University, have already made AI fluency mandatory for all students. Canadian institutions can’t afford to wait too long to follow suit.

Of course, none of this happens without money and trust. Jackie pointed out that institutions need both more flexible funding and stronger financial aid if they’re going to modernize responsibly. And both speakers reflected on the erosion of public confidence in higher education. Sunny framed it simply: “If institutions can better tell their impact stories, it makes it easier for employers to champion them.”

Looking ahead to 2035, both ended on a hopeful note. Jackie hopes that by then, lifelong learning will finally be the default where people can stack, pivot, and return to education without starting from scratch. Sunny envisions institutions that serve whole communities, not just students aged 18 to 22, acting as anchors of both economic and civic life.

Want to listen or watch this discussion? You can find it on YouTube.

Looking Ahead

We’ll be turning next to enrolment. How it’s changing, what’s staying the same, and what institutions are learning along the way. That conversation happens on October 24, and registration is already open (see below, in a big green box).

In the meantime, keep sharing your ideas in the registration form or reach out anytime at [email protected].

I’m looking forward to seeing many of you this afternoon, and again in two weeks.

Cheers,

Tiff

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October 10, 2025
The Fifteen: October 3, 2025
Welcome to The Fifteen, a global round-up of the stories animating higher education institutions and systems around the globe. Let’s get to it.
1. Argentina’s Congress has overturned President Milei’s veto of the new law on university financing. In theory, that means a huge increase in university funding. In reality, a new economic collapse is starting to look increasingly likely, which might make fulfilling the law difficult.
2. Lots going on in Australia: a Senate Committee has weighed in on the state of governance in Australian universities, a new strategic research review is underway (and look, they have discussion papers and everything, so anti-Canadian), and former Labor leader/current University of Canberra Vice-Chancellor Bill Shorten has come up with some ideas for overhauling the country’s higher ed sector (a mix of sensible stuff and wishful thinking, if you ask me) and the University of Technology, Sydney is cutting…hold on to your hat…1100 programs in order to regain financial balance.
3. The humanities are on a roll. In Belarus, the humanities are so feared that the country has just declared the European Humanities University – which left the country and set up in neighbouring Lithuania about 20 years ago – an “extremist organization”. And in South Korea, new humanities enrolments are up strongly.
4. Canada has long shared a medical accreditation system with its neighbour to the south. But Trump-inspired changes de-emphasized equity, diversity, and inclusion. Result? Canada is going it alone on Medical Accreditation.
5. With elections coming in the next few weeks/months, here are manifesto analyses for various parties in the Netherlands and Costa Rica. Marvel at how some issues echo around the world.
6. Less than 9% of Ethiopian secondary graduates managed to pass the national high school exam. Cue an enormous amount of handwringing.
7. Beyond the financial crisis in Kenyan universities (see almost every previous Fifteen this year), it turns out that the government is in arrears paying academic faculty (it is fairly common in Africa for academic salaries to be paid directly by government rather than by universities) and as a result they have now gone on strike. Universities there have now been closed for over a week.
8. There’s a row brewing in Belgium as the French part of the country wrestles with very significant budget deficits and the government of Wallonie-Bruxelles has identified higher education as a place to cut: in particular, by eliminating subsidies for students who take too long to graduate and rationalization of program offerings. This is not going over well.
9. In Nigeria, “cultism” on campuses has nothing to do with religious rituals, but rather with organized crime (cult = gang, basically). At the University of Nigeria, Nsukka the head of the student union and several others have been suspended for cultism, threats to life, and gross misconduct.
10. In Peru, the President is not keen on opening new universities while money is short. Congress just told him to go pound sand, passing legislation authorizing 22 new universities across the country.
11. This month, Russian embassies around the world have been advertising scholarships for local students who wish to study in Russia. Here are examples from Kenya, Sri Lanka, and Bangladesh. It might be a hard sell, as a number of Africa governments are warning that they have evidence Russia is using such scams to enrol unsuspecting young people into the Russian Army.
12. In Ukraine, half of all university places are going unfilled, suggesting the sector is headed for major consolidation in the post-war period. Meanwhile, South Africa’s Minister of Higher Education told 2025 high-school matriculants that there were nowhere near enough places available for all of them in university and they should prepare some (non-university) back-up plans.
13. Long, sad, but very good article from a recently-emigrated Venezuelan professor on the challenges of teaching in that country – particularly on salaries of under $3/month.
14. Trump lost in court to both Harvard and UCLA, leading some to breathe a sigh of relieve. However, last week the government decided it would slap a $100,000 charge on every new H1B application. As usual with Trump details are unclear, but if the new scheme applies to universities, it would pretty much devastate any attempt by universities to hire foreign professors. Expect major changes in global academic flows.
15. Are any of those European “let’s poach global talent” schemes enacted in the wake of last winter’s vandalism of the US science system bearing fruit? In a limited way, yes. Lund University is reporting that it has received over 1300 applications for its global recruitment program though about 20% of those were for a single joint position in Theology and Humanities. Meanwhile, 25 American professors have been recruited for a two-year stint with offers of half a million euros each.
And just for this once, I will add a sixteenth: the IgNobel prize was awarded this week, to a scholar from Bath University in England, for a piece of research showing that small amounts of alcohol can improve your pronunciation of a foreign language. I’ll drink to that.
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October 3, 2025
It’s mid October, PED. Where is the data?

Last month on September 19, the Public Education Department presented to the Legislative Education Study Committee slide decks showing preliminary, high-level results of the state’s spring assessments, promising that detailed data would be forthcoming soon thereafter.

A month has passed and the PED has released nothing further. No district- or school-level data files or presentations. Not even a press release. The school year is one-quarter over and the public is being kept in the dark about the state of New Mexico’s schools?

Repeated outreach by New Mexico Education to the PED has been met with silence. The one PED data slide presented showed that statewide, there was incremental improvement in reading – from 38 percent proficient in 2023 to 39 percent proficient in 2024, a decline in math (from 24 percent proficient to 23 percent), and a three percentage-point increase in science (from 34 percent to 37 percent).

A companion presentation by LESC staff contained richer data, but also showed different proficiency rates than the PED deck – reading at 38 percent proficient and math down to 22 percent proficient.

The LESC deck also contained some graphs that merit a deeper dive, which is impossible unless and until PED releases the data files. For example, the achievement gaps between economically disadvantaged and non-economically disadvantaged students in English Language Arts closed significantly statewide.

This occurred both because economically disadvantaged students’ ELA scores increased by five percentage-points (and nine percentage-points since 2022), and because more affluent students saw their ELA scores decline by five percentage-points.

Ideally, gaps should close because those on the lower end are making big gains, not because those at the higher end are dropping.

Without detailed data, it is not possible for researchers to dive in to determine why and where these changes are occurring.

National education researcher Chad Aldeman recently wrote on his Substack blog that this practice of hiding or delaying data has become a nationwide trend among state education departments.

“Here we are in pumpkin spice / decorative gourd season, and half the states still have not released their results yet,” Alderman wrote. “To put it colloquially, this is too damn slow! Summer is the key here—it’s the time when parents and educators could actually do something about the results. By the time fall rolls around, kids are already back in school and they’ve moved on to the next grade. Teachers have already written their lesson plans for the year….

…“When it comes to releasing their results, too many states are putting parents last,” Aldeman wrote. “This game of telephone is also unnecessary in today’s modern world. Most state assessments are now administered on computers and can be scored instantaneously. Private testing companies like the ACT and SAT promise to deliver results in 2-4 weeks.”

According to Aldeman’s research, last year the PED didn’t release its data until mid-November, which ranked New Mexico 45th out of the 50th states.

Will this year be any different?

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October 19, 2024
HR and the Courts — October 2024

by CUPA-HR | October 15, 2024

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

NCAA & Power Conferences Receive Preliminary Approval of Name, Image and Likeness and Anti-Trust Settlement — Ivies Win Dismissal of Anti-Trust Lawsuit

A federal district court judge has given preliminary approval to the NCAA and Power Conferences’ revised $2.8 billion settlement proposal to be paid to college athletes over 10 years. The judge set a fairness hearing for April 2025, with all objections to be filed by January 31, 2025. The federal judge in the Northern District of California concluded that the revised settlement was “fair, reasonable and adequate” (In Re College Athlete NIL Litigation (N.D. Ca. No. 4:20-cv-03919, 10/7/24)).

Commentators immediately voiced concerns that the settlement addresses a small group of male athletes in specific sports to the disadvantage of female athletes. In addition, a number of Division I athletes may express objection on the grounds that the settlement continues to give the NCAA too much control over the free market compensation for student-athletes.

Separately, the eight Ivy League institutions won a dismissal of a federal lawsuit that claimed their ban on athletic scholarships violated anti-trust laws. The federal district court judge assigned to the case granted the Ivy League’s motion for summary judgement, holding that the plaintiffs failed to allege any properly defined market and therefore failed to allege market wide anti-competitive effects (Choh v. Brown University, et. al. (D. Conn. No. 3:23-cv-00305, 10/10/24)).

University of Louisville School of Medicine Loses First Amendment Retaliation Claim Brought by Terminated Professor

A former professor at the University of Louisville School of Medicine will receive a trial over his First Amendment retaliation claims regarding statements he made about gender dysphoria to a conservative think tank. Following comments he made during an event sponsored by the Heritage Foundation, the former medical school professor was demoted and his annual contract was not renewed. The professor expressed the view that gender dysphoria in children “is a sociocultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.”

The 6th U.S. Circuit Court of Appeals ruled unanimously that the university officials who terminated Allan M. Josephson should have known that he was engaged in protected speech, and that terminating him would violate his First Amendment rights. Moreover, the court ruled that the professor’s outside speech was not part of his professorial duties, and therefore subject to his First Amendment claims. The court concluded that a trial is necessary, as there are facts in dispute regarding the rationale for the actions taken against the professor (Josephson v. Ganzel (6th Cir., No. 23-05293, 9/10/24)).

Tenured Professor Loses Defamation Case Against Harvard

A federal district court judge partially dismissed a noted behavioral scientist’s $25 million defamation and breach-of-contract lawsuit against Harvard University. Professor Francesca Gino was placed on administrative leave following claims of data fraud in her research. Gino claimed that the university’s notice on her faculty page that she had been placed on administrative leave after conducting an investigation of her research was libelous because the university acted with ill will.

The court concluded that the professor was a “public figure” and therefore faces a higher standard for proving defamation. A public figure in these circumstances can only prove defamation if the alleged defamer had knowledge that their statement was untrue or acted with reckless disregard for the truth. Moreover, the court concluded that the issue of “research integrity and potential misconduct” is one of public concern, adding to the reason for the dismissal of the defamation claim (Gino v. Presidents and Fellows of Harvard College (D. Mass. No. 1:23-cv-11775, 9/11/24)).

Regarding the professor’s breach-of-contract claims, the professor alleged that the university’s decision to place her on administrative leave and its related disciplinary sanctions were the same as tenure removal. The judge concluded that it is premature to rule on the breach-of-contract claims.

Public School Employees Lose Free Speech Case Challenging Anti-Racism Training

In a case with possible application to public higher ed training, the 8th U.S. Circuit Court of Appeals affirmed the dismissal of a case brought by two Missouri public school employees who claimed that anti-bias employee training violated their First Amendment rights. The lawsuit failed because the court concluded that they were never asked to leave nor were they disciplined for expressing contrary views and that they received professional development credit for attending the anti-racism training (Henderson v. Springfield R-12 School District (8th Cir No. 2301374, 9/12/24)).

The decision provides some clarity on such training, as the court noted that the employees were not compelled to express certain views or refrain from expressing certain views during the training. The appellate court did reverse the trial judge’s ruling requiring the plaintiffs to pay $300,000 in attorney fees for filing a frivolous claim.

Former Student’s Title IX Claim Dismissed as Alleged University Internship Did Not Exist

A federal district court judge dismissed allegations of a sexually abusive internship at the University of Michigan because the plaintiff could not prove the internship actually existed. The court noted that none of the usual formalities, such as an application or a university authorization of an internship, were established.

In light of this, the court dismissed the Title IX claims and allegations of failure to investigate sex harassment and abuse allegations as the plaintiff did not allege discrimination while “participating in or at least attempting to participate in” a university program or activity, as the internship did not exist. The University of Michigan prevailed in the case (Doe v. Baum ((2024 BL 340244 E.D. Mich. No. 4-21-cv-12492, 9/26/24)).

University of Texas Professor Loses First Amendment Complaint

A federal district judge dismissed a University of Texas professor’s First Amendment claim that his speech was “chilled” by unspecific threats following comments critical of “critical race theory and DEI-based ideology.” The judge dismissed the case, holding that the unspecific threats did not rise to the level of an adverse employment action (Lowery v. Mills ((W.D. Tex. No. 1:23-cv-00129, 10/2/24)).

The judge ruled in favor of the University of Texas McCombs School of Business. The judge noted in a footnote, however, that the dismissal was not meant to approve of the university’s actions and that “in the context of a world-class university like UT, differences of opinion should be tolerated by those in authority, no matter that they are uncomfortable, so long as they do not incite violence or disrupt the school’s ability to function as a teaching institution.”

Supreme Court to Review Split in Circuits Regarding Higher Ed ERISA Lawsuit

The Supreme Court has agreed to hear arguments over the split in circuit courts of appeals as to when a university may be sued by employees under the Employee Retirement Income Security Act (ERISA). Employees of Cornell University alleged that improper service provider fees were charged to their pension fund. They are appealing an adverse 2nd Circuit decision stating employees must plead that the alleged “prohibited transaction” by the service provider involved either “unnecessary services” or the fees were “unreasonable” (Cunningham v. Cornell University (US No. 23-1007 cert granted 10/4/24)).

The 2nd U.S. Circuit Court of Appeals, the 3rd Circuit, the 7th Circuit, and the 10th Circuit all require the additional pleading that alleges some kind of fraud or impropriety in order to allow the case to move forward. This contrasts with the 8th Circuit and the 9th Circuit, which apply the “ERISA-as-written” rule. That rule allows a plaintiff to simply allege that a transaction between an employer and a pension or welfare plan service provider occurred and proceed with discovery over whether fraud or some other impropriety exists. We will follow developments in this case as it proceeds.

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October 15, 2024
HR and the Courts — October 2023 – CUPA-HR

by CUPA-HR | October 10, 2023

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

Governor Newsom Vetoes Bill That Would Ban Caste Discrimination

California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.

Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.

University Trustees May Be Sued for Professor’s Alleged First Amendment Claims

The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).

The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.

In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.

SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team

To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.

The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.

This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.

On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.

Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives

Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.

A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.

Fired Football Coach Sues University, Seeks $130 Million in Damages

A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”

The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.

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October 10, 2023
Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

by CUPA-HR | May 30, 2023

On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023.

In the blog post, the department states that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule that was issued in July 2022. The department said that the 240,000 comments are nearly twice the number of comments the department received during the Trump administration’s Title IX rulemaking process, which included the release of a proposed rule in November 2018 and the subsequent final rule in May 2020. The department added that the new target date of October 2023 will be reflected in the upcoming Spring 2023 Regulatory Agenda, which will likely be released in the next month.

As a reminder, the Biden administration’s Title IX rulemaking rolls back the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. CUPA-HR filed comments in September 2022 in response to the NPRM, in which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

In addition to the Title IX rulemaking, the blog post also states that the final rule on transgender student eligibility in athletic programs under Title IX will also be delayed until at least October 2023. Released on April 6, the proposed rule establishes that schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity and would instead allow schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries.

CUPA-HR will continue to monitor for updates on the Title IX final rule.

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May 30, 2023
Labor and Employment Policy Updates — October 2022 – CUPA-HR
by CUPA-HR | October 22, 2022

As the 2022 midterm election nears, Congress has turned its focus to campaigning and essentially halted legislative action until after the election. Despite the lack of activity from Congress, federal agencies have continued to push forward with anticipated regulatory actions in the labor and employment policy area. This blog post details some of the regulatory activity CUPA-HR is currently monitoring, as well as a stalled nomination for a top position at the Department of Labor (DOL).

NLRB Joint Employer Rule

On September 7, the National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) on the joint employer standard. Generally speaking, the NPRM proposes to expand joint employer status to entities with indirect or reserved control over essential terms and conditions of employment.

The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment and work rules. According to the NLRB’s press release, the Board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

Comments in response to the proposal were originally due November 7, but after stakeholders requested an extension to the filing deadline the Board extended the comment period to December 7.

Independent Contractor Rule

On October 13, the DOL published an NPRM to rescind the current method for determining independent contractor status under the Fair Labor Standards Act. The current test finalized by the Trump administration in 2021 has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:
- The extent to which the work is integral to the employer’s business;
- The worker’s opportunity for profit or loss depending on managerial skill;
- The investments made by the worker and the employer;
- The worker’s use of skill and initiative;
- The permanency of the work relationship; and
- The degree of control exercised or retained by the employer control.
Comments in response to the NPRM are due November 28.

Jessica Looman Nomination

On September 13, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the nomination of Jessica Looman to serve as Administrator of the DOL’s Wage and Hour Division (WHD). Looman was officially nominated for the position in July 2022, months after Biden’s previous nominee David Weil failed to receive 50 votes to clear the Senate floor and become the WHD Administrator.

Looman has not yet had a committee vote to move her nomination to a full Senate floor vote. It is unclear when a Senate HELP vote will take place, but is likely to come after the election in November. Regardless of the timing on a vote, Looman continues to carry out the WHD’s rulemaking agenda in her current role as the Principal Deputy Administrator.

CUPA-HR will keep members apprised of any updates relating to the rulemakings and nomination discussed above.

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October 22, 2022
HR and the Courts – October 2022 – CUPA-HR

by CUPA-HR | October 4, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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October 4, 2022