Colleges, Universities and Community Colleges

The interconnected economy and the broken leg

Two propositions complete the proof. The first is that "commerce" in the Suspension Clause is trade and the exchange of goods and services, interstate and international by nature, and that an order anywhere that closed a school, a hospital, a consulate, a border, a stadium, a bar or a bus limited the commerce of every campus that depended on it; the statute reaches that mechanism because it asks only whether the operation was partially suspended because of orders limiting commerce, travel or group meetings, and the Notice's own Q&A-12 and the United States' own brief confirm that an order "addressing a third party" suffices.⁶³ The second is that an operation which orders suspended through June 30 does not resume normal operation on July 1: the suspension the orders caused continued because of them for the period their compelled dismantling took to reverse, and the orders in force in the later quarters, listed in the quarters section, carried it. Both propositions are stated from the text and from the orders' own terms.

The interconnected economy

Travel, entry and the international student body

The federal government limited the travel of this industry's students and scholars on every day of the six quarters. Proclamations 9984, 9992, 9993, 9996 and 10041 suspended the entry of persons present in China, Iran, the Schengen Area, the United Kingdom, Ireland and Brazil from February 2, 2020; Proclamation 10143 continued them and added South Africa on January 25, 2021; Proclamation 10199 added India on May 4, 2021; and Proclamation 10294 revoked them effective November 8, 2021, after the last claimable quarter had closed (Ex. ECO-A-001; Ex. ECO-A-002; Ex. ECO-A-003; Ex. ECO-A-004; Ex. ECO-A-005; Ex. FED-207; Ex. FED-208; Ex. ECO-A-009). Proclamation 10043 suspended the entry of certain graduate students and researchers from the People's Republic of China from June 1, 2020 without expiration (Ex. AGY-FED-LABOR-IMMIGRATION-012). The State Department suspended routine visa services worldwide on March 20, 2020 and restored them post by post, with routine services not restored in most posts through 2021 (Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. AGY-FED-LABOR-IMMIGRATION-061). The Student and Exchange Visitor Program fixed the terms of online study on March 13, 2020, revoked them for fully online programs on July 6, 2020 and restored them July 14 (Ex. SEC-15-004; Ex. SEC-15-005). The CDC's pre-departure testing order barred every untested aircraft passenger from January 26, 2021 (Ex. FED-042). The land-border notifications prohibited non-essential travel from Canada and Mexico from March 21, 2020 to November 8, 2021 (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258). The foreign governments' own orders (China's entry suspension; Canada's bar on discretionary entry by United States residents to August 9, 2021; the European Union's removal of the United States from its list on August 30, 2021; India's lockdown) are the circumstances in which those federal instruments operated (Ex. FOR-022; Ex. FOR-001; Ex. FOR-014; Ex. FOR-028). International students are a revenue line and a research workforce; a campus that could not admit, enroll or hire them was partially suspended by the orders that kept them out, whatever the campus's own State had ordered.⁶⁴

Workforce, schools, child care and quarantine

The K-12 closure orders of every State in spring 2020, the hybrid and remote orders of 2020-21 and the face-covering and quarantine orders of 2021-22 governed the children of every faculty and staff member and the placements of every education student (Ex. GA-003; Ex. KS-005; Ex. NC-002; Ex. OH-003; Ex. IL-003; Ex. MN-002; Ex. NY-011; Ex. NJ-032; Ex. NJ-055; Ex. IL-040; Ex. KY-052; Ex. PA-042; Ex. NY-073; Ex. CA-034; Ex. TX-053). The federal leave mandate made leave mandatory for every employee under a quarantine order or with a closed school from April 1 to December 31, 2020 (Ex. FED-170). The State health departments' quarantine and isolation orders excluded exposed and infected employees from "employment, and public places" for ten to fourteen days per exposure through the third quarter of 2021 (Ex. IN-092; Ex. KS-056; Ex. KS-057). The conveyance mask order governed every commute by shuttle, bus, rail and air from February 1, 2021 (Ex. FED-020; Ex. FED-051; Ex. FED-052). The vaccination-or-testing orders of the third quarter of 2021 made vaccination status a condition of coming to work on a campus in Washington, Illinois, Minnesota, Virginia, Philadelphia and Denver (Ex. WA-079; Ex. IL-042; Ex. MN-044; Ex. VA-045; Ex. MET-PHL-021; Ex. MET-DEN-023), and New Mexico's order did the same for every State employee with whom a campus dealt (Ex. NM-063). The Education and Child Care analysis carries the school and child-care orders State by State.⁶⁵

Gatherings, venues, tourism and the college town

The gathering caps, spectator orders and venue closures of every State governed athletics, performances, commencements, reunions, conferences and recruiting events (Ex. NJ-002; Ex. VA-006; Ex. VA-013; Ex. MS-036; Ex. UT-029; Ex. DC-080; Ex. WV-056; Ex. WA-102; Ex. HI-025). The Library's meetings records for this industry list those gatherings event by event, with the venue jurisdictions' orders and the organizers' stated actions. The hotels, restaurants and bars that house and feed visiting families, recruits and conference attendees were closed, capped and curfewed by the State and county orders, and in Iowa's six university counties closed a second time in August 2020 because of campus outbreaks (Ex. IA-023). The college-town face-covering ordinances, airborne-transmission controls on every indoor public place, recite the campus as their reason (Ex. IA-064; Ex. IN-085; Ex. OK-085; Ex. MS-070; Ex. NH-077; Ex. IA-067; Ex. MET-BOS-013; Ex. MET-BOS-019, context), and Boulder County confined the students themselves (Ex. MET-DEN-100). The traveler quarantines of fourteen States and three cities reached every family that drove a student to a campus across a State line (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. PA-021; Ex. MD-023; Ex. NM-024; Ex. KS-053; Ex. VT-080; Ex. ME-013; Ex. ME-026; Ex. RI-008; Ex. HI-003; Ex. AK-012; Ex. MET-CHI-019; Ex. DC-081). The Hotels, Travel and Tourism and Fitness, Arts, Entertainment and Sports analyses carry those orders.⁶⁶

Health care as counterparty

The hospitals, clinics and long-term-care facilities that host the clinical placements of nursing, allied-health, dental-hygiene, pharmacy and medical students were closed to "non-essential health care personnel" in March 2020 (Ex. AL-005), suspended their elective services under the State orders, tested and screened every entrant under the CMS rules, and from June 21, 2021 operated under the OSHA Healthcare Emergency Temporary Standard (Ex. FED-080); in the third quarter of 2021 their workforces were ordered vaccinated in California, New York, New Jersey, Connecticut, Maine, Maryland, Massachusetts, New Mexico and Oregon (Ex. CA-030; Ex. NY-071; Ex. CT-051; Ex. CT-055; Ex. ME-061; Ex. MD-058; Ex. MA-067; Ex. NM-068; Ex. OR-046; Ex. OR-051). A clinical program whose placement site is closed to students by the site's own order is a clinical program partially suspended by that order. The Hospitals and Health Systems analysis carries the health-care orders.⁶⁷

Courts, public offices and the federal government as counterparty

The institution's contracts, permits, licenses and disputes move through courts, recorders, licensing boards and federal agencies, each of which operated under emergency orders: the federal district courts' general orders (Ex. FED-297; Ex. FED-299), the New Mexico Supreme Court's protocols (Ex. NM-064; Ex. NM-066), the Utah Judicial Council's orders (Ex. UT-051; Ex. UT-053), the Wisconsin, South Dakota and Idaho courts' orders (Ex. WI-029; Ex. SD-084; Ex. ID-084); the federal facility rules of Executive Order 13991, M-21-15 and the Task Force (Ex. FED-060; Ex. FED-270; Ex. FED-272) governed every federal laboratory, agency office and site visit; the USCIS closures and the consular suspension governed every immigration filing (Ex. AGY-FED-LABOR-IMMIGRATION-060); and the Department of Defense's travel restrictions governed every ROTC and installation program (Ex. FED-280).⁶⁸

Supply and contractors

The food-service, housing, bookstore, custodial and security contractors that run the auxiliaries were bound by the orders on the institution's premises and by the workplace standards of Cal/OSHA, Oregon OSHA and Virginia (Ex. ECO-B-044; Ex. ECO-B-048; Ex. VA-045); the University of Minnesota's protocol bound "contractors, service providers, vendors, and suppliers" by name (Ex. MET-MSP-062); Denver's order bound every entity providing personnel to a post-secondary school (Ex. MET-DEN-023); Minnesota's policy bound "contractors, vendors, volunteers and interns" (Ex. MN-044); and the protective-equipment allocation orders reached the institution's own inventories (Ex. MN-007). Each of these counterparty orders is an order under the statute's words, under Q&A-12's logic and under the United States' own representation.

The broken leg

The clause's grammar

In the Suspension Clause, "during the calendar quarter" modifies "suspended," not "orders." Congress wrote that an employer is eligible for a quarter in which "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders"; it did not write "orders in effect during the calendar quarter," and it did not write "suspended during the calendar quarter by orders in effect during that quarter."⁶⁹ The question the statute asks for the third quarter of 2021 is whether the operation was suspended during that quarter because of orders, and an operation that was dismantled by order in 2020 and rebuilt under conditional orders through June 2021 was suspended, in the quarter that followed, because of those orders, for as long as the rebuilding took. Tri-State defines a suspension to include a "delay," and "due to" is but-for causation: but for the orders, no law required the dismantling, and but for the dismantling, no delay in restoration would have followed.⁷⁰

Tri-State's definition and the Notice's own recognition

Tri-State holds that "a 'partial suspension' is a temporary delay, interruption, or termination of a portion [of] an employer's business," on the parties' agreed definitions, and that "due to" requires but-for causation.⁷¹ The Notice's own words recognize the same thing in two places. Q&A-22 provides that "[a]n employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter"; the Service reads "during the calendar quarter" as modifying "suspended," and the whole quarter follows from a suspension during part of it.⁷² Q&A-16's fourth factor provides that when an employer moves operations under an order "some adjustment period is expected" and that a "significant delay ... in moving operations" is itself "a partial suspension during that transition period"; the Service recognizes that a suspension an order caused persists for a period after the order operates, and it offers its two-week illustration "for example."⁷³ The Service is bound to both readings by its own directive, and the United States is bound to the account of the Notice it gave two courts.

What the orders compelled this industry to dismantle

The orders did not ask this industry to pause. They compelled it to dismantle. A residential college that received the March 2020 orders emptied its residence halls within days (Ex. SEC-27-007; Ex. AGY-ST-EDUCATION-HIGHER-ED-027), refunded housing and dining charges, released or furloughed the dining, custodial, residence-life, athletics, events and facilities staff whose work the orders had ended, cancelled its commencement and its summer camps and conferences, converted every course to a mode for which no room had been scheduled and no faculty member hired, closed its libraries, clinics and recreation centers, withdrew its students from clinical placements the hospitals had closed, suspended its international admissions when the consulates closed and the borders shut, and stopped hiring the H-1B and J-1 faculty and scholars whose entry was suspended. Each of those steps was compelled by an instrument named in the layers section, and each is a step that a reopening order does not reverse on the day it takes effect: a dining contract renegotiated for grab-and-go service is not restored to board plans by a proclamation; a residence hall de-densified to single occupancy is not refilled in a semester in which the order fixes capacity; a faculty of adjuncts released in April is not rehired for a fall term whose mode of instruction the State had not yet fixed; an international cohort that could not obtain visas in the summer of 2020 does not arrive in the fall of 2021 because a proclamation is revoked in the following November; a commencement cancelled in May 2020 and capped in May 2021 is not held twice in 2022.

How long the orders' own steps took

The restoration period is stated from the orders' own terms. In Washington, in-person classes were prohibited March 13, 2020, permitted from August 1, 2020 only under enumerated conditions, tightened October 20, 2020, and replaced July 1, 2021 by a vaccination-verification condition that ran through the third quarter of 2021 and beyond; there was no day in the period on which a Washington campus operated free of a higher-education order (Ex. WA-008; Ex. WA-038; Ex. WA-046; Ex. WA-071; Ex. WA-074; Ex. WA-081; Ex. WA-079). In Oregon, in-person instruction was prohibited from March 21 to June 13, 2020 and permitted from June 14, 2020 only under minimum standards that were rescinded at 12:01 a.m. on June 30, 2021, the last day of the second quarter, fifteen months and nine days after the prohibition; the statewide indoor face-covering rule, a workplace exposure-control requirement, followed on August 13, 2021 (Ex. OR-059; Ex. OR-060; Ex. OR-021; Ex. OR-043; Ex. OR-048). In New Jersey, in-person instruction ceased March 18, 2020, laboratories and clinical programs resumed July 1, 2020 and the rest August 13, 2020 under the Secretary's standards, and the campus distancing requirements were lifted May 28, 2021, fourteen months and ten days after the cessation (Ex. NJ-002; Ex. NJ-024; Ex. NJ-032; Ex. NJ-050). In New York, the in-person workforce was reduced to zero March 22, 2020, higher education was admitted to Phase Four under mandatory guidance June 26, 2020, and the guidance ended June 25, 2021, fifteen months after the reduction (Ex. NY-002; Ex. NY-031; Ex. NY-112; Ex. NY-049). In Virginia, in-person classes ceased March 30, 2020, campus gatherings were capped at 50 from June 5 and the institutions placed under Phase Three conditions from July 1, 2020, a modified stay-at-home order ran from December 14, 2020, and the general orders ended May 28, 2021 (Ex. VA-006; Ex. VA-010; Ex. VA-013; Ex. VA-014; Ex. VA-016; Ex. VA-029). In Utah, every residential and in-person student was tested weekly from January 1 to May 4, 2021, and a statute of March 24, 2021 ordered every institution to restore at least 75 percent of its in-person courses for a fall term that began in late August 2021 (Ex. UT-029; Ex. UT-043; Ex. UT-046). In Michigan, colleges were sent to remote instruction November 18 to December 20, 2020 and the orders ended June 22, 2021 (Ex. MI-060; Ex. MI-076). In Wyoming, the order that "[a]ll colleges, universities, and trade schools shall not hold in person classes" was continued through twenty-seven instruments to May 31, 2021, the last of which kept conditions on "colleges, universities, and trade schools" after removing them from every other business (Ex. WY-004; Ex. WY-050; Ex. WY-056; Ex. WY-058). The academic calendar fixes the rest: the fall 2021 term, the first that any campus outside Washington could hold without a conditional-operation order, was planned, staffed, housed, priced and sold between March and June 2021 under the orders then in force, opened in the third and fourth weeks of August 2021 under the Delta-wave orders, and enrolled 2.7 percent fewer students than the fall 2020 term that the orders had already reduced by 2.5 percent (Ex. SEC-15-007; Ex. SEC-27-023). An operation dismantled in March 2020 and rebuilt under orders until the last week of June 2021 was not restored on the first day of July.

The instruments still in force

The shortest of the pathways is this: the orders did not end. The third-quarter inventory above lists the federal general layer (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-042; Ex. FED-207; Ex. FED-208; Ex. FED-232; Ex. FED-080; Ex. FED-272), the State emergencies in force in 35 jurisdictions on July 2 and 25 on September 21, 2021 (Ex. LAW-246; Ex. LAW-247), the campus orders of Washington, Illinois, Nevada, Minnesota, Virginia, Philadelphia and Denver and Massachusetts's executive-department vaccination order, which addressed higher education by name (Ex. WA-071; Ex. WA-079; Ex. IL-042; Ex. NV-055; Ex. MN-044; Ex. VA-045; Ex. MA-068; Ex. MET-PHL-021; Ex. MET-DEN-023), the indoor face-covering and exposure-control orders of Louisiana, Oregon, New Mexico, Illinois, Hawaii, the District and every large metro and Nevada's county-triggered directive (Ex. LA-036; Ex. OR-048; Ex. NM-068; Ex. NV-041; Ex. IL-043; Ex. HI-023; Ex. HI-024; Ex. DC-057; Ex. MET-DFW-030; Ex. MET-AUS-051; Ex. MET-BOS-013; Ex. MET-LA-018; Ex. MET-SFO-071), the school and child-care orders of the 2021-22 year (Ex. NJ-055; Ex. IL-040; Ex. KY-052; Ex. PA-042; Ex. NY-073; Ex. RI-055; Ex. DE-044; Ex. OR-045), the quarantine and isolation orders (Ex. IN-092; Ex. KS-056; Ex. KS-057), the health-care-worker and public-employee mandates (Ex. CA-030; Ex. NY-071; Ex. CT-055; Ex. CT-054; Ex. CT-056; Ex. MD-058; Ex. ME-061; Ex. OR-051; Ex. NC-031; Ex. NM-063), the instrumentalities' rules (Ex. SEC-27-001; Ex. SEC-27-011; Ex. IN-094; Ex. KS-096; Ex. ND-083; Ex. WY-060) and the prohibitory statutes and executive orders of fifteen States, as their terms reach public institutions (Ex. TX-037; Ex. FL-030; Ex. AZ-043; Ex. UT-045; Ex. MT-072; Ex. GA-036; Ex. AL-078; Ex. AR-033; Ex. IA-047; Ex. ID-028; Ex. OK-043; Ex. ND-082; Ex. SC-045; Ex. NH-068; Ex. TN-065). These are the orders. This analysis never says an expired order suspended anyone by its own force; it says the suspension the orders caused continued because of them, and it has listed the orders that were in force.⁷⁴