The governmental orders by layer
The orders that reached this industry came in seven layers, and every layer was in force in every one of the six quarters. This section inventories them: the nationwide universe from which they are drawn; the federal layer by quarter; the fifty States and the District of Columbia by region, with the instruments that closed the campuses, the conditions on which they reopened, the winter re-tightening, the 2021 transition dates and the prohibitory statutes that carried the third quarter of 2021; the largest metros; the sector regulators, which for this industry are the State university systems acting as instrumentalities, the State health departments whose higher-education guidance carried the force of the orders that incorporated it, the State boards of health and the legislatures; the counterparties; the standing duties beneath the orders; and the ecosystem of travel, border, workforce and supply instruments through which orders anywhere limited campus commerce everywhere. The State regime table and the quarter map rendered from the Library on this page tabulate what this section states.
The universe
The governmental response to COVID-19 was not a handful of orders, and every count that follows is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, 42 States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders" (Ex. LAW-201).17 The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone, before four of the six claimable quarters had begun (Ex. LAW-203). The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, and its curators stopped coding in the spring of 2021 (Ex. LAW-205). The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties (Ex. LAW-202).18 The Library's own count is a count of the instruments this site has retrieved, verified and indexed; it is not, and is not offered as, a count of the orders that reached any employer or of the orders issued nationally, which the sources above place in the tens of thousands. The Commerce Department attributed the largest quarterly decline in gross domestic product on record to "'stay-at-home' orders issued in March and April" (Ex. LAW-253); the Comptroller General wrote that "millions have lost their jobs due to stay-at-home orders and business closures" (Ex. LAW-213); the Bureau of Labor Statistics found that 19 percent of establishments, 1.6 million of them, "experienced a government-mandated closure" in 2020 (Ex. LAW-207).19
The federal layer
The run-up and the second quarter of 2020
Wages paid after March 12, 2020 belong to the second quarter of 2020, and every federal instrument of the run-up belongs to that quarter's proof. Proclamations 9984 (China, February 2), 9992 (Iran, March 2), 9993 (the Schengen Area, March 13) and 9996 (the United Kingdom and Ireland, March 16) suspended the entry of noncitizens who had been present in those places within fourteen days, and Proclamation 10041 added Brazil from May 26 (Ex. ECO-A-001; Ex. ECO-A-002; Ex. ECO-A-003; Ex. ECO-A-004; Ex. ECO-A-005).20 The Student and Exchange Visitor Program told every certified school on March 9 and March 13, 2020 on what terms F-1 and M-1 students could take online courses and remain in status (Ex. SEC-15-004). The State Department cancelled every routine visa appointment in the world as of March 20, 2020 (Ex. AGY-FED-LABOR-IMMIGRATION-060). The Families First Coronavirus Response Act's leave mandate became operational April 1, 2020: every employer under 500 employees, which is to say every employer described on this page, "shall provide ... paid sick time" to any employee unable to work because "[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or because "the school or place of care" of the employee's child "has been closed" (Ex. FED-170).21 Proclamation 10014 suspended the entry of most new immigrants from April 23 (Ex. ECO-A-010); Proclamation 10043 suspended the entry, from June 1, 2020 and without expiration, of certain graduate students and researchers from the People's Republic of China (Ex. AGY-FED-LABOR-IMMIGRATION-012); Proclamation 10052 suspended the entry of H-1B, H-2B, L and J nonimmigrants, the visa classes of visiting faculty, post-doctoral scholars and exchange students, from June 24, 2020 (Ex. ECO-A-011). Congress, on March 27, 2020, wrote into the CARES Act that its Higher Education Emergency Relief Fund was for "the disruption of campus operations due to coronavirus" and "significant changes to the delivery of instruction due to the coronavirus," which is the federal legislature's own description of what had happened to this industry by the end of the month (Ex. LAW-001).22
The third quarter of 2020
On July 6, 2020 the Student and Exchange Visitor Program announced that nonimmigrant students attending schools operating entirely online for the fall term "may not take a full online course load and remain in the United States," that the Department of State would not issue visas to students enrolled in such programs and that Customs and Border Protection would not permit them to enter; on July 14, 2020 the rule was rescinded (Ex. SEC-15-005).23 For eight days every institution in the country planning an online fall term was under a federal instrument that would have removed its international students, and every institution planning a hybrid term was reissuing Forms I-20 to keep them. The proclamations continued; the consular resumption began post by post on July 15 with routine services not restored in most posts through 2021 (Ex. AGY-FED-LABOR-IMMIGRATION-061); the leave mandate ran the whole quarter (Ex. FED-170); and the Department of Homeland Security renewed the land-border prohibition on non-essential travel monthly.
The fourth quarter of 2020 and the first quarter of 2021
Proclamation 10131 carried the immigrant and temporary-worker suspensions to March 31, 2021 (Ex. ECO-A-012); the leave mandate expired December 31, 2020 (Ex. FED-170). On January 25, 2021 the incoming Administration countermanded the outgoing Administration's scheduled termination and continued the Schengen, British, Irish and Brazilian suspensions without interruption, adding South Africa: "The entry into the United States, as immigrants or nonimmigrants, of noncitizens who were physically present within the Schengen Area, the United Kingdom ..., the Republic of Ireland, and the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United States, is hereby suspended" (Ex. FED-207).24 The CDC's global pre-departure testing order took effect January 26, 2021 (Ex. FED-042). The CDC's conveyance mask order, signed January 29, took effect at 11:59 p.m. on February 1, 2021 "until further notice": "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States," and every conveyance operator "must require all persons onboard to wear masks for the duration of travel," enforced by criminal fines (Ex. FED-020); the TSA's security directives of the same day required every transit agency, railroad, bus company, airline and airport to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators (Ex. FED-050).25 Every campus shuttle, commuter bus, light-rail line and airport through which students and staff reached a campus was under that order from February 1, 2021 through September 30, 2021 and beyond. Executive Order 13991 required masks and distancing of every person "in Federal buildings or on Federal lands" (Ex. FED-060), and OMB Memorandum M-21-15 capped federal workplace occupancy at 25 percent (Ex. FED-270), instruments that governed every federal research facility, national laboratory and agency office in which faculty and graduate students worked and every federal official who would have visited a campus. Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 on March 11, 2021 (Ex. FED-174).
The second quarter of 2021
Proclamation 10199 suspended entry from India, the largest source of international graduate students in the United States, effective May 4, 2021 (Ex. FED-208). The TSA extended the surface directive through September 13, 2021 by SD 1582/84-21-01A, effective May 12 and applied "including those already vaccinated" (Ex. FED-051). OSHA's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, was published and effective June 21, 2021, applying "to all settings where any employee provides healthcare services or healthcare support services," with compliance due July 6 and July 21, 2021 (Ex. FED-080): every campus health center, counseling center, nursing skills laboratory operating a clinic, dental-hygiene clinic and athletic-training room was a covered setting, with entry screening, distancing, barriers, ventilation, daily employee screening and paid medical removal.26 OMB Memorandum M-21-25 rescinded the 2020 telework directive on June 10 and required agency reentry plans by July 19 (Ex. FED-271). The land-border prohibition was renewed April 22, May 24 and June 23 (Ex. FED-232; Ex. FED-255).
The third quarter of 2021
The federal layer tightened. On July 1, 2021 the conveyance mask order (Ex. FED-020) and SD 1582/84-21-01A (Ex. FED-051), the inbound-testing order (Ex. FED-042), Proclamations 9984, 9992, 10143 and 10199 (Ex. ECO-A-001; Ex. ECO-A-002; Ex. FED-207; Ex. FED-208), Proclamation 10043 (Ex. AGY-FED-LABOR-IMMIGRATION-012), the land-border prohibition under the June 23 notifications, in effect "at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021" until "11:59 p.m. EDT on July 21, 2021" (Ex. FED-232; Ex. FED-255), the Healthcare Emergency Temporary Standard with compliance dates of July 6 and July 21 (Ex. FED-080), Executive Order 13991, M-21-15's remaining principles until the Task Force superseded them on July 29, 2021, and M-21-25 (Ex. FED-060; Ex. FED-270; Ex. FED-271), the Department of Defense's travel restrictions of March 15, 2021 (Ex. FED-280) and the CDC eviction moratorium to July 31 (Ex. FED-025) were in force. Inside the quarter: the public health emergency was renewed effective July 20, 2021 "[a]s a result of the continued consequences of the ... pandemic" (Ex. FED-016); the Department of Homeland Security renewed the land-border prohibition July 22, August 23 and September 22 (Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-256; Ex. FED-257; Ex. FED-258; Ex. ECO-A-036; Ex. ECO-A-056); the Safer Federal Workforce Task Force reinstated face coverings, an airborne-transmission control, in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission on July 27-29, required that "employees and onsite contractors must sign an attestation confirming their vaccination status," that "[v]isitors must provide information on their vaccination status," and that any federally hosted "in-person meeting, conference, or event that will be attended by more than 50 participants" first obtain agency-head approval (Ex. FED-272); the CDC issued its second eviction order August 3, in force until vacated August 26 (Ex. FED-026); the TSA issued SD 1582/84-21-01B on August 20, effective September 14, 2021 to January 18, 2022 (Ex. FED-052); the President signed Executive Orders 14042 and 14043 on September 9, reciting that the public health emergency and the national emergency remain in effect, and the Office of Management and Budget published its determination on September 24 that compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs" (Ex. FED-063; Ex. FED-064; Ex. FED-275).27 Every research university holding a federal contract received the contractor guidance on September 24, 2021, with clauses required from October 15 (Ex. FED-274); the obligations it imposed fell after the quarter, and this analysis states it as a September 2021 federal statement of the emergency, never as a third-quarter obligation. On September 30, 2021 every instrument named in this paragraph other than the eviction orders that expired July 31 and August 26 and the surface directive replaced September 14 remained in force. A federal government that was renewing its border prohibitions, reinstating face coverings in its own buildings, requiring attestations of its contractors' employees and extending its conveyance face-covering regime in July, August and September 2021 cannot maintain that no orders limiting commerce, travel or group meetings were in effect in that quarter; the position cannot be squared with the Federal Register.
The fifty States
The fifty-State regime for this industry has a shape that repeats: a March 2020 instrument that prohibited in-person instruction by name or confined educational institutions to distance learning; a spring 2020 stay-at-home order that confined the students, the faculty and the staff; a summer 2020 conditional-reopening order or plan requirement that fixed the date and terms of the fall; a winter 2020-21 re-tightening; a spring 2021 termination instrument that named what it kept alive; and, in 2021, either a mandate on the campus population or a statute dictating what the campus could require, often both. The State table on this page carries all fifty-one rows; this section states the analysis by region, with the lead instruments.
The Northeast
Every State in the region closed its campuses by order in March 2020 and kept general business restrictions in force through the first day of the second quarter of 2021. New Jersey's EO 104 ordered institutions of higher education to cease in-person instruction from March 18, 2020 and capped gatherings at 50, EO 107 confined every resident to home and required telework, and the Office of Emergency Management's Administrative Order 2020-3 of March 20, 2020 closed every college library and computer lab (Ex. NJ-002; Ex. NJ-004); EO 155 allowed only laboratory, clinical and hands-on instruction to resume from July 1, 2020 under the Secretary of Higher Education's standards and a submitted restart plan, EO 175 allowed the rest from August 13 under the same standards, and EO 242 lifted the campus distancing requirements on May 28, 2021 (Ex. NJ-024; Ex. NJ-032; Ex. NJ-050).28 New York reduced every non-essential in-person workforce to zero from March 22, 2020 (Ex. NY-002); SUNY and CUNY moved to distance learning from March 19 (Ex. AGY-ST-EDUCATION-HIGHER-ED-060); EO 202.45 permitted higher education only as a Phase Four industry that "must be operated in compliance with the guidance promulgated by the Department of Health," the Interim Guidance for Higher Education required every institution to "develop a plan for reopening and operating" covering capacity, testing, "quarantine and isolation capacity," residential living and dining, EO 202.61 required daily reporting of every test and diagnosis, and EO 205 attached a fourteen-day quarantine to every student arriving from a designated State until April 1, 2021 (Ex. NY-031; Ex. NY-112; Ex. NY-050; Ex. NY-006); the guidance ended with EO 210 on June 25, 2021 (Ex. NY-049). Pennsylvania closed every business that was not life sustaining on March 19, 2020, and colleges, universities and professional schools were not on the list (Ex. PA-002; Ex. PA-003; Ex. PA-004); the statewide stay-at-home order followed April 1 (Ex. PA-006); the Secretary of Health's traveler order of November 17, 2020 required every entrant to test or quarantine, reaching every student returning for the spring term until March 1, 2021 (Ex. PA-021; Ex. PA-027); and Philadelphia's Safer at Home order sent in-person college instruction online from November 20, 2020 (Ex. MET-PHL-010). Massachusetts closed non-essential brick-and-mortar premises from March 24, 2020 (Ex. MA-008), listed "higher education limited" among the Phase II enterprises that could open only under sector standards (Ex. MA-019), and from August 1, 2020 required every person arriving in the Commonwealth to quarantine for fourteen days or produce a negative test, on pain of $500 per day, until March 22, 2021 (Ex. MA-025); its orders ended May 29, 2021 (Ex. MA-048). Connecticut cancelled public-school classes from March 17 (Ex. CT-003) and reduced every non-essential in-person workforce to zero from March 23, 2020 (Ex. CT-007), the order that closed every campus office and non-essential campus operation, imposed a mandatory quarantine with a $1,000 penalty on every arrival from an affected State from July 24, 2020 (Ex. CT-023; Ex. CT-028), and recited in its September 1, 2020 emergency renewal "the reopening and continued operation of schools, colleges and universities" as a continuing hazard (Ex. CT-025). Rhode Island confined every out-of-state arrival to quarantine from March 26, 2020 (Ex. RI-008; Ex. RI-009) and, in EO 21-04 of January 14, 2021, permitted institutions of higher education to conduct in-person learning only "upon consultation with RIDOH" and only after "initial surveillance testing for COVID-19 for all students," extended to May 14, 2021 (Ex. RI-033). Vermont's Stay Home, Stay Safe order, its traveler quarantine of March 30, 2020, its November 10, 2020 suspension of the travel map with a universal quarantine under which "[e]ssential travel includes travel to attend PreK-12 school and college if commuting daily," and its single-household gathering rule with its "returning college students" provision governed the State's campuses through June 15, 2021 (Ex. VT-010; Ex. VT-012; Ex. VT-080; Ex. VT-034). Maine and New Hampshire closed non-essential businesses and confined residents to home (Ex. ME-007; Ex. ME-011; Ex. NH-009; Ex. NH-010), and Maine's quarantine on every person entering the State from April 3, 2020 (Ex. ME-013) was replaced June 9, 2020 by Executive Order 57 FY 19/20, whose test-or-quarantine rule ran from July 1, 2020 until it was lifted on May 1, 2021 (Ex. ME-026); Durham, New Hampshire, adopted its face-covering ordinance on August 3, 2020 reciting the return of approximately 15,000 University of New Hampshire students on August 10 (Ex. NH-077).29
The South
Seventeen jurisdictions, seventeen unbroken chains of force-of-law instruments from March 2020 through September 30, 2021. Virginia's EO 55 confined every Virginian to home, prohibited gatherings of more than ten and ordered that "[i]nstitutions of higher education shall cease all in-person classes and instruction" (Ex. VA-006); EO 61 ordered that they "continue to cease all in-person classes and instruction" from May 15, 2020 (Ex. VA-010); EO 65 provided that "[n]o institutions of higher education shall hold or host gatherings of more than 50 individuals" (Ex. VA-013); EO 67 required them to comply with the Phase Three guidance from July 1, 2020 (Ex. VA-014); EO 72 imposed a modified stay-at-home order and a ten-person gathering cap from December 14, 2020 (Ex. VA-016); and the general orders ended May 28, 2021 (Ex. VA-017; Ex. VA-029). Georgia's EO 03.16.20.01 closed "all public elementary, secondary, and post-secondary schools" from March 18, 2020, EO 03.26.20.02 kept public postsecondary schools closed for in-person instruction, EO 04.01.20.01 kept them "closed for instruction to graduate and undergraduate students through the end" of the semester, and the University System's own directive closed the residence halls and cancelled commencement (Ex. GA-003; Ex. GA-008; Ex. GA-009; Ex. SEC-27-007). Alabama's State Health Officer closed "colleges and universities" at the close of business March 19, 2020, confined the State to home from April 4, applied distancing, sanitation and face-covering rules to every school "public and private" from June 1, 2020 and extended to colleges on July 29 the face-covering rule that accompanied its distancing and sanitation requirements (Ex. AL-005; Ex. AL-013; Ex. AL-021; Ex. AL-030). South Carolina closed all public schools "to include state-supported colleges, universities, and technical colleges" from March 16, 2020 and, on June 11, 2020, authorized them "to continue to provide instruction by delivering virtual and remote learning, by housing only out-of-state or displaced students, and by restricting on-campus services and activities to emergency or other critical personnel" (Ex. SC-001; Ex. SC-002; Ex. SC-024; Ex. SC-025). Louisiana authorized every public postsecondary institution to "substitute in-person clinical and classroom instruction with online and lab simulations ... for the duration of the declared emergency" on March 19, 2020, confined the State to home from March 23, and in 2021 kept every "postsecondary" institution under a face-covering requirement for every student, employee and visitor to the last day of the academic year, one of the workplace infection-prevention and exposure-control conditions of its 2021 proclamations, before the statewide indoor face-covering mandate of August 4, 2021, enforced by citation against the businesses and organizations that failed to require it, reached every campus again (Ex. LA-004; Ex. LA-005; Ex. LA-030; Ex. LA-031; Ex. LA-032; Ex. LA-036). Mississippi capped college stadiums at 25 percent of bowl seating, prohibited game-day gatherings outside them and required face coverings of every attendee from August 20, 2020, carried the caps through the winter and limited college arenas to 50 percent until April 30, 2021 (Ex. MS-036; Ex. MS-039; Ex. MS-046; Ex. MS-050; Ex. MS-051; Ex. MS-053). Texas closed schools and confined the State to essential services in March 2020, quarantined air and road travelers from New York, New Jersey, Connecticut, New Orleans, California, Washington, Atlanta, Chicago, Detroit and Miami until May 21, 2020, rolled back capacity to 50 percent and closed bars in the trauma service areas that include Bryan-College Station, Austin, Lubbock and San Antonio from October 2020 to March 10, 2021, and then, in 2021, forbade every governmental entity, public universities included, from requiring masks or vaccination documentation (Ex. TX-003; Ex. TX-008; Ex. TX-006; Ex. TX-007; Ex. TX-013; Ex. TX-017; Ex. TX-025; Ex. TX-026; Ex. TX-029; Ex. TX-030; Ex. TX-032; Ex. TX-036; Ex. TX-037). Florida's Board of Governors directed on March 17, 2020 that "remote instruction will continue through the end of the Spring semester at each state university and students who can return home should return home" (Ex. AGY-ST-EDUCATION-HIGHER-ED-027); Miami-Dade and Palm Beach Counties closed "private colleges, trade schools, and technical colleges" except for distance learning (Ex. MET-MIA-003; Ex. MET-MIA-044); the State quarantined arrivals from the New York area from March 24 to August 5, 2020 (Ex. FL-012); and from July 1, 2021 section 381.00316 forbade every "educational institution" to require vaccination documentation of students, on pain of $5,000 per violation (Ex. FL-030). Kentucky, Tennessee, North Carolina, Oklahoma, Arkansas, West Virginia, Maryland, Delaware and the District confined their populations and closed non-essential operations in March and April 2020 with educational institutions permitted only for distance learning and critical research (Ex. KY-010; Ex. TN-007; Ex. NC-005; Ex. OK-006; Ex. OK-007; Ex. AR-035; Ex. WV-009; Ex. MD-007; Ex. DE-005; Ex. DC-006), and West Virginia's orders addressed colleges and universities by name in June 2020, July 2020, January 2021, February 2021 and March 2021 (Ex. WV-039; Ex. WV-044; Ex. WV-056; Ex. WV-059; Ex. WV-062). Kentucky's Senate Bill 1 of February 2, 2021 put every emergency order restricting "postsecondary educational institutions" on a thirty-day clock (Ex. KY-041), enjoined by the Franklin Circuit Court from March 2021 until the Supreme Court of Kentucky ordered the injunction dissolved on August 21, 2021, and operative for the rest of the third quarter (Ex. KY-055). Virginia's general orders ended May 28, 2021 (Ex. VA-029) and Maryland's July 1, 2021 (Ex. MD-031), and every one of the seventeen kept or issued a binding instrument in the third quarter of 2021.30
The Midwest
Illinois's EO 2020-07 had to exempt "university dining halls" from its restaurant closure because the closure otherwise reached them, and EO 2020-10 confined every resident to home and permitted educational institutions only "for purposes of facilitating distance learning, performing critical research, or performing essential functions" (Ex. IL-004; Ex. IL-005); Phase 4 governed the fall of 2020 from June 26 (Ex. IL-019), EO 2020-47 fixed the K-12 conditions in which the State's education students taught (Ex. IL-020), and Chicago's capacity specifications limited "Higher Education" gatherings of students and staff to 50 indoors and 100 outdoors (Ex. MET-CHI-053); the general regime ended June 11, 2021 (Ex. IL-037) and returned on August 26, 2021 with EO 2021-20's workplace infection-prevention and exposure-control regime, a universal indoor face-covering requirement with an employer duty to enforce it, and its "Vaccination Requirements for Higher Education" (Ex. IL-042; Ex. IL-043). Ohio's Stay At Home Order used the same distance-learning formula (Ex. OH-011), its mass-gathering orders of November 2020 to March 2021 prohibited gatherings of more than ten "outside a single residence ... or a ... dormitory living unit" (Ex. OH-038; Ex. OH-043), and its orders ended June 2, 2021, after which Am. H.B. 244, signed July 14, 2021 and effective October 13, 2021, barred State institutions of higher education from requiring vaccines without full FDA approval (Ex. OH-064; Ex. SEC-27-015). Michigan's Stay Home, Stay Safe order suspended every in-person operation "not necessary to sustain or protect life" from March 24, 2020 (Ex. MI-011); the MDHHS orders of November 15, December 7 and December 18, 2020 and January 13, 2021 sent high schools and colleges to remote instruction from November 18 to December 20, prohibited indoor non-residential gatherings and excepted "school and university cafeterias" from the dining closure (Ex. MI-060; Ex. MI-061; Ex. MI-062; Ex. MI-063); the orders ended June 22, 2021 (Ex. MI-076). Minnesota's Stay at Home order required that "[a]ll workers who can work from home must do so" (Ex. MN-010); EO 20-52 confirmed on May 11, 2020 that "higher education institutions must continue to operate in a distance learning model" (Ex. MN-019); EO 20-85 required every institution to "establish and implement a Higher Ed Plan" with in-person activity only "consistent with MDH Guidelines" and face coverings under EO 20-81 (Ex. MN-029); EO 20-99 dialed the State back on November 20, 2020 (Ex. MN-032); the emergency ended July 1, 2021 (Ex. MN-038; Ex. MN-041); and Policy 1446 required proof of vaccination or weekly testing of every employee of the "Minnesota State Colleges and Universities system" from September 8, 2021 (Ex. MN-044). Indiana's Stay at Home order, its Monroe County face-covering order of July 2020, an airborne-transmission control on every indoor public place of the Indiana University county, its control measures of July 19, 2021 binding "post-secondary facilities" to report cases and exclude infected and exposed persons "from schools, preschools, daycare settings, employment, and public places," and the Seventh Circuit's description of Indiana University's mandate ("all students at Indiana University must be vaccinated against COVID-19 unless they are exempt for religious or medical reasons. Exempt students must wear masks and be tested for the disease twice a week") carry the State's six quarters (Ex. IN-006; Ex. IN-085; Ex. IN-068; Ex. IN-092; Ex. IN-094). Iowa's Board of Regents asked its three universities on March 10, 2020 "to move as quickly as possible towards the ability to deliver instruction virtually" and moved all classes online on March 14 (Ex. SEC-27-008); the Governor closed the bars of Black Hawk, Dallas, Johnson, Linn, Polk and Story Counties on August 27, 2020 "in response to outbreaks at Iowa State University (Story) and the University of Iowa (Johnson)" (Ex. IA-023); Ames adopted its face-covering ordinance on September 1, 2020 (Ex. IA-064); and House File 889 barred every governmental entity, public universities included, from requiring proof of vaccination from May 20, 2021 (Ex. IA-047). Kansas's EO 20-29 of May 4, 2020 kept "higher education closed to groups over 10" (Ex. KS-019), the Department of Health and Environment's quarantine mandate on travel and exposure ran from March 23, 2020 through the third quarter of 2021 (Ex. KS-053; Ex. KS-054; Ex. KS-055; Ex. KS-056; Ex. KS-057), and Kansas State University required face coverings, an airborne-transmission control, on every campus in August 2021 (Ex. KS-096). Wisconsin's Safer at Home order confined the State and permitted educational institutions only for distance learning and critical research (Ex. WI-002); Emergency Order #31 provided that "post-secondary education institutions may resume operation" only in Phase Two (Ex. WI-004); EO #90 of September 22, 2020 recited the surge among 18-to-24-year-olds and campus outbreaks (Ex. WI-010); Emergency Order #3 of October 6, 2020 capped public gatherings at 25 percent of capacity (Ex. WI-012). Missouri's Stay Home Missouri order, its Phase 1 extension providing that "[s]ummer school and other on-campus activities may proceed under guidelines," and Boone County's orders of March and September 2020 reciting the University of Missouri's in-person resumption carry the State's 2020 (Ex. MO-004; Ex. MO-007; Ex. MO-043; Ex. MO-044; Ex. MO-051). Nebraska's directed health measures closed schools statewide by April 1, 2020 (Ex. NE-005; Ex. NE-007), and the Lincoln-Lancaster County Health Department's directed health measure of August 24, 2021, effective August 26, reimposed indoor face coverings, an airborne-transmission control, on the University of Nebraska-Lincoln and was extended September 28, 2021 (Ex. NE-080; Ex. NE-081). North Dakota's confinement orders quarantined every traveler (Ex. ND-014; Ex. ND-021), House Bill 1465 of May 7, 2021 barred State entities from requiring vaccination documentation with a carve-out for the University System (Ex. ND-082), and North Dakota State University required face coverings in every classroom for fall 2021 (Ex. ND-083). South Dakota closed its schools and confined vulnerable persons in Minnehaha and Lincoln Counties in March and April 2020 (Ex. SD-005; Ex. SD-007; Ex. SD-009), and its Governor's vaccine-passport prohibition of April 20, 2021 governed its State agencies through the third quarter of 2021 (Ex. SD-030).31
The West
Washington's series is one unbroken chain from March 13, 2020 to the end of the period and beyond: Proclamation 20-12 amended the emergency proclamation "to prohibit all public and private universities, colleges, technical schools, apprenticeship programs, and similar schools and programs from conducting in-person classes in all counties of Washington State" until noon on April 24, 2020 (Ex. WA-008), after which the campuses remained under the Stay Home, Stay Healthy order (Ex. WA-016); Proclamation 20-12.1 allowed general instruction from August 1, 2020 "only if they implement, follow, and enforce the requirements specified below" (Ex. WA-038); Proclamation 20-12.2 added winter conditions on distancing, face coverings, testing and isolation housing (Ex. WA-046); Proclamation 20-83 quarantined travelers from December 21, 2020 (Ex. WA-054; Ex. WA-059; Ex. WA-061); Proclamation 20-12.3, signed June 30 and effective July 1, 2021, provided that "IHEs that do not have fully vaccinated campuses are prohibited from providing" in-person instruction unless they verified vaccination status and imposed face-covering and other exposure-control conditions (Ex. WA-071), amended July 12 (Ex. WA-074) and August 27, 2021 (Ex. WA-081: the institution "must presume all persons on campus are unvaccinated until proof of vaccination is" obtained); Proclamation 21-14.1 of August 20, 2021 prohibited "[a]ny Worker from engaging in work for the operator of an Educational Setting after October 18, 2021 if the Worker has not been fully vaccinated," higher education named and no test-out (Ex. WA-079); the Secretary of Health's Orders 20-03.3 and 20-03.4 governed face coverings statewide, airborne-transmission controls on every indoor public space (Ex. WA-070; Ex. WA-078); and the spectator-event requirements governed every stadium "professional, higher education and K-12" (Ex. WA-102). Oregon's EO 20-09 provided that "colleges and universities shall be prohibited from conducting in-person classroom, laboratory, and other instruction from March 21, 2020, through April 28, 2020," EO 20-17 extended the prohibition through June 13, EO 20-28 provided from June 14, 2020 that "in-person instruction, research, and residential activities at colleges and universities may only take place if they comply with the minimum standards" of the Oregon Health Authority, and EO 21-15 rescinded EO 20-28 as of 12:01 a.m. on June 30, 2021, the last day of the second quarter of 2021 (Ex. OR-059; Ex. OR-060; Ex. OR-021; Ex. OR-043); the freeze and county framework orders of November and December 2020 kept higher education under EO 20-28 (Ex. OR-033; Ex. OR-035); and OAR 333-019-1025 reimposed face coverings in every indoor space in the State from August 13, 2021, a workplace exposure-control rule that made the person responsible for the space answerable for compliance at $500 per day, with Oregon OSHA's permanent workplace rule in force on every campus employer all year (Ex. OR-048; Ex. ECO-B-048). California's stay-at-home order confined the State from March 19, 2020 (Ex. CA-002); the University of California, the California State University and the California Community Colleges moved remote by system action on March 17-27 (Ex. AGY-ST-EDUCATION-HIGHER-ED-051; Ex. AGY-ST-EDUCATION-HIGHER-ED-018); Riverside County's Health Officer closed "all ... community colleges, public, private, nonprofit, and for-profit colleges and universities" from March 16, 2020, extended the closure by the April 1 amended order to June 19, and released higher education on May 9, 2020 while keeping K-12 closed (Ex. MET-RIV-004; Ex. MET-RIV-010; Ex. MET-RIV-011, context), and San Diego County ordered that "[a]ll public or private schools, colleges, and universities shall not hold classes or other school activities where students gather on the school campus" (Ex. MET-SAN-002; Ex. MET-SAN-003); the Department of Public Health's institutions-of-higher-education guidance of August 7, 2020, mandatory under the stay-at-home order and the Blueprint, barred indoor lectures in monitored counties and provided that "[i]n-person activities or meetings involving external groups ... are not allowed" (Ex. AGY-ST-EDUCATION-HIGHER-ED-009); the Regional Stay at Home Order governed the end of the fall term (Ex. CA-020); the Blueprint ended June 15, 2021 (Ex. CA-029); the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards, readopted June 17, 2021, bound every campus employer through the third quarter of 2021 with a written prevention program, exclusion of cases and unvaccinated close contacts with pay, and testing at no cost (Ex. ECO-B-044); and the University of California's policy of July 15, 2021 made vaccination "a condition of Physical Presence at any University Location or Program" (Ex. SEC-27-001). Colorado's Stay at Home order and its Safer at Home order, which permitted postsecondary in-person instruction only for programs that could not be taught remotely and limited recreational travel to ten miles, governed the spring (Ex. CO-012; Ex. CO-016; Ex. CO-019); Denver's Public Health Order for institutes of higher education of September 22, 2020, revised October 16, required every institute to notify the department of every case within 24 hours, to enforce the face-covering order and to suspend sports programming on an outbreak, until its rescission on April 23, 2021 (Ex. MET-DEN-037; Ex. MET-DEN-015); Boulder County prohibited gatherings of persons aged 18 to 22 in the City of Boulder and ordered the residents of 36 identified properties to stay at home from September 24, 2020 (Ex. MET-DEN-100); Public Health Order 20-38 in its successive amendments kept employer duties in force through the third quarter of 2021 (Ex. CO-041; Ex. CO-053); and Denver's order of August 2, 2021 required the vaccination of the personnel of "schools, including post-secondary and higher education" by September 30, 2021 (Ex. MET-DEN-023). Utah's Stay Safe, Stay Home directive and public health orders confined the State in the spring (Ex. UT-002; Ex. UT-004); Utah County's order of September 22, 2020 was issued the day Provo and Orem were moved to the orange level amid the college-age surge (Ex. MET-SLC-053; Ex. UT-023); EO 2020-73 (issued November 8, effective November 9, 2020) imposed a statewide face-covering requirement beside its gathering prohibition and testing mandate, prohibited organized athletic and extracurricular gatherings and ordered that "no later than January 1, 2021, a public or private institution of higher education ... shall require each individual who is enrolled as a student ... and who lives in on-campus housing or attends at least one in-person class ... to obtain a diagnostic test ... each week," carried by the public health orders naming institutions of higher education through May 4, 2021 (Ex. UT-029; Ex. UT-030; Ex. UT-031; Ex. UT-032; Ex. UT-033; Ex. UT-034; Ex. UT-037; Ex. UT-038; Ex. UT-039; Ex. UT-042; Ex. UT-043; Ex. AGY-ST-EDUCATION-HIGHER-ED-046); S.B. 107 of March 24, 2021 ordered every institution of higher education to offer at least 75 percent of its pre-pandemic in-person courses in person for fall 2021 (Ex. UT-046); and H.B. 1007 of May 28, 2021 provided that an institution of higher education "may not require an individual to wear a face covering to attend or participate in in-person instruction, institution-sponsored athletics, institution-sponsored extracurricular activities, in dormitories, or in any other place on a campus" (Ex. UT-045). Nevada closed non-essential businesses and confined the State (Ex. NV-004; Ex. NV-012), and in the third quarter of 2021 Directive 047 reimposed indoor face coverings, an airborne-transmission control, on every campus in a county of substantial transmission from July 30 (Ex. NV-041; Ex. NV-042) and the State Board of Health's emergency regulation of August 20, 2021 provided that "a person shall not enroll in courses at a university, community college, or state college on or after November 1, 2021, unless the person submits to the institution proof of a completed COVID-19 vaccination series" (Ex. NV-055; Ex. NV-070, context). Arizona's EO 2020-12 permitted educational institutions only for distance learning, critical research and essential functions, EO 2020-18 confined the State, EO 2020-24 quarantined travelers from New York, New Jersey and Connecticut (Ex. AZ-005; Ex. AZ-010; Ex. AZ-012), and EO 2021-15 of June 15, 2021 provided that "[t]he Arizona Board of Regents, a public university or community college may not mandate that students obtain a COVID-19 vaccine, show proof of COVID-19 vaccination or place any conditions on attendance or participation in classes or academic activities, including but not limited to mandatory testing and mandatory mask usage," until its rescission on September 29, 2021, followed by EO 2021-18 of August 16 (Ex. AZ-043; Ex. AZ-045). New Mexico's public health order of March 23, 2020 closed non-essential businesses and required 100 percent remote work (Ex. NM-006), EO 2020-054 quarantined every person arriving from out of State from July 1, 2020 (Ex. NM-024), the county framework ran to July 1, 2021 (Ex. NM-060), and the public health order of August 17, 2021 reinstated indoor face coverings statewide as an airborne-transmission control and required school workers to vaccinate or test weekly (Ex. NM-068). Hawaii quarantined every arriving person from March 26, 2020 and kept a test-or-quarantine-or-vaccination condition on every trans-Pacific arrival through the third quarter of 2021 and to March 25, 2022, and never lifted in the period its statewide indoor face-covering requirement, an airborne-transmission control kept in force beside its arrival testing and quarantine conditions, first imposed by the Fifteenth Proclamation of November 16, 2020 (Ex. HI-016) and carried without interruption into the Twenty-First Proclamation of June 7, 2021 (Ex. HI-023) and the Emergency Proclamation of August 5, 2021 (Ex. HI-024), the instruments in force in the third quarter of 2021 (Ex. HI-003; Ex. HI-004; Ex. HI-005; Ex. HI-025; Ex. HI-027; Ex. HI-031). Idaho's self-isolation order confined the State (Ex. ID-003; Ex. ID-004); Central District Health required face coverings "on the property of a public or private or charter school, or technical school or college or university" in Ada County from August 11, 2020, an airborne-transmission control imposed on every school and campus in Ada County (Ex. ID-024; Ex. ID-025); the Stay Healthy orders of the winter required face coverings of anyone entering a long-term-care "campus", an exposure-control condition on the clinical sites in which the State's nursing students trained (Ex. ID-009; Ex. ID-010; Ex. ID-011; Ex. ID-012; Ex. ID-013); and EO 2021-04 of April 7, 2021 barred State entities, the public universities included, from requiring proof of vaccination as a condition of services (Ex. ID-028). Montana excepted "university dining" from its closures because they otherwise reached it (Ex. MT-005; Ex. MT-043), confined the State and quarantined travelers (Ex. MT-009; Ex. MT-010), and HB 702 of May 7, 2021 made it an unlawful discriminatory practice to "refuse, withhold from, or deny to a person any ... educational opportunities ... or employment opportunities based on the person's vaccination status" (Ex. MT-072; Ex. SEC-27-014). Wyoming's Statewide Public Health Order #1 provided on March 19, 2020 that "[a]ll colleges, universities, and trade schools shall not hold in person classes," and it was continued without interruption through May 31, 2021 by twenty-seven continuations, each titled as an order regarding "K-12 Schools, Colleges, Universities, and Trade Schools," authorizing on-site instruction from May 15, 2020 only under conditions and removing all restrictions on other businesses on March 16, 2021 "except for child care facilities and K-12 schools, colleges, universities, and trade schools" (Ex. WY-004; Ex. WY-008; Ex. WY-012; Ex. WY-016; Ex. WY-018; Ex. WY-020; Ex. WY-024; Ex. WY-028; Ex. WY-030; Ex. WY-038; Ex. WY-042; Ex. WY-046; Ex. WY-050; Ex. WY-053; Ex. WY-056; Ex. WY-058); the University of Wyoming's trustees required indoor face coverings and entry testing of every employee and student in August 2021 and extended the requirement indefinitely on September 17 (Ex. WY-060; Ex. WY-061). Alaska's Health Mandates closed residential school programs (Ex. AK-003; Ex. AK-004), capped gatherings at ten (Ex. AK-011), confined the State by the hunker-down Mandate 011 from March 28 (Ex. AK-013), quarantined every arrival and from June 5, 2020 let a negative test substitute for the quarantine (Ex. AK-012; Ex. AK-038), and designated "college and university dormitories" as quarantine shelter (Ex. AK-016; Ex. AK-033).32
The winter re-tightening and the 2021 transition
Every region re-tightened between mid-October and late December 2020, and every re-tightening reached the campuses: Michigan's remote-instruction order for colleges (Ex. MI-060); Philadelphia's order sending colleges online (Ex. MET-PHL-010); Utah's weekly testing order (Ex. UT-029); Washington's winter conditions (Ex. WA-046); Oregon's freeze and county framework with higher education kept under EO 20-28 (Ex. OR-033; Ex. OR-035); Colorado's Level Red, with offices at 10 percent and gatherings prohibited; Illinois's Tier 3; New Mexico's two-week reset of November 16 to 30; California's Regional Stay at Home Order (Ex. CA-020); Vermont's single-household rule with its "returning college students" provision and its universal traveler quarantine (Ex. VT-034; Ex. VT-080); the traveler testing orders of Maryland and Pennsylvania on students returning for the spring (Ex. MD-023; Ex. MD-050; Ex. PA-021); Virginia's modified stay-at-home order (Ex. VA-016); Ohio's gathering prohibition outside a "dormitory living unit" (Ex. OH-038); Kansas's and North Dakota's statewide face-covering orders, airborne-transmission controls on every indoor public space; and the District's prohibition of high-contact sports with the exception of universities and professional leagues under approved plans (Ex. DC-080). Every northeastern State kept its general business restrictions in force through the first day of the second quarter of 2021.33 The general regimes then ended on dates that are themselves proof of continuing suspension: Utah's campus orders May 4, 2021 (Ex. UT-043); Rhode Island's campus testing condition May 14 (Ex. RI-033); New Jersey's campus distancing requirements May 28 (Ex. NJ-050); Virginia's orders May 28 (Ex. VA-029); Massachusetts's May 29 (Ex. MA-048); Pennsylvania's mitigation orders May 31 and its face-covering order June 28 (Ex. PA-100); Ohio's June 2; Illinois's June 11 (Ex. IL-037); California's June 15 (Ex. CA-029); Vermont's June 15 (Ex. VT-044); Michigan's June 22 (Ex. MI-076); New York's June 25 (Ex. NY-049); Oregon's higher-education order June 30 (Ex. OR-043); Minnesota's emergency July 1 (Ex. MN-041); Maryland's orders July 1 (Ex. MD-031); Delaware's emergency July 13 (Ex. DE-040); and Washington's never, Proclamation 20-12.3 taking effect on July 1, 2021 (Ex. WA-071). Every ending instrument kept named instruments alive, and in every State a second set of governmental instruments followed.
The preemption States and what carried their 2021 quarters
The States that displaced local orders did so by gubernatorial or legislative instrument, and each such instrument is itself an order of an appropriate governmental authority prescribing what commerce could do. Texas's GA-34 ended local face-covering and occupancy mandates on March 10, 2021, GA-36 barred governmental face-covering requirements from May 18, GA-38 consolidated the bar on July 29 and kept testing and hospital-reporting mandates and vaccination-proof prohibitions in force, and GA-39 of August 25 extended the vaccination-proof bar to FDA-approved vaccines and to every public university (Ex. TX-029; Ex. TX-031; Ex. TX-036; Ex. TX-037); the Supreme Court of Texas stayed the Dallas and Bexar County face-covering orders on August 15, 2021 (Ex. TX-044; Ex. TX-045), while the Travis County and Austin orders adding "public colleges" remained in force through September 30 (Ex. MET-AUS-025; Ex. MET-AUS-051; Ex. MET-AUS-053; Ex. MET-AUS-054). Florida suspended every local COVID order May 3, 2021, voided them July 1 and barred vaccination documentation requirements at every educational institution (Ex. FL-060; Ex. FL-030; Ex. FL-063). Arizona barred the Board of Regents, the universities and the community colleges from conditioning attendance on vaccination, testing or face coverings for unvaccinated students from June 15 to September 29, 2021 (Ex. AZ-043; Ex. AZ-045). Georgia forbade every State agency, the University System included, to require proof of vaccination from May 25, 2021 and suspended enforcement of local COVID ordinances against private organizations on August 19 (Ex. GA-036; Ex. GA-043). Utah, Montana, Iowa, Idaho, Arkansas, Alabama, Oklahoma, North Dakota, South Carolina, New Hampshire and Tennessee enacted the statutes described above (Ex. UT-045; Ex. UT-046; Ex. MT-072; Ex. IA-046; Ex. IA-047; Ex. ID-028; Ex. AR-031; Ex. AR-033; Ex. AR-034; Ex. AL-078; Ex. OK-042; Ex. OK-043; Ex. ND-080; Ex. ND-082; Ex. SC-045; Ex. NH-068; Ex. TN-065), and several were construed or enjoined inside the third quarter of 2021: Arkansas's Act 1002 enjoined August 6 (Ex. AR-081); South Carolina's Proviso 117.190 held on August 17 not to "prohibit a universal mask mandate" at a public institution of higher learning (Ex. SC-040) and Proviso 1.108 upheld September 2 and September 30 (Ex. SC-041; Ex. SC-042); Iowa's House File 847 enjoined as to public schools September 13 (Ex. IA-057); Oklahoma's SB 658 enjoined in part September 1 (Ex. OK-043). In each of those States the campus operated in the third quarter of 2021 under a governmental instrument that told it what it could and could not require of the people on it, under the federal layer, and, in Texas, Iowa, Arkansas, South Carolina and Oklahoma, under litigation decided inside the quarter about which of those instruments governed.34
The largest metros
The county and municipal instruments that reached this industry are of four kinds. First, the March 2020 college closures by name: Riverside County's order closing "all ... community colleges, public, private, nonprofit, and for-profit colleges and universities" from March 16, 2020, extended by the April 1 amended order to June 19, with higher education released May 9 (Ex. MET-RIV-004; Ex. MET-RIV-010; Ex. MET-RIV-011, context); San Diego County's order that "[a]ll public or private schools, colleges, and universities shall not hold classes or other school activities where students gather on the school campus" (Ex. MET-SAN-002; Ex. MET-SAN-003); Miami-Dade's Emergency Order 07-20 and Palm Beach County's Emergency Order No. 2 permitting "[p]rivate colleges, trade schools, and technical colleges" to operate "only as needed to facilitate online or distance learning" (Ex. MET-MIA-003; Ex. MET-MIA-044; Ex. MET-MIA-045), and Miami Beach's orders keeping "[a]ll private schools, colleges, and educational institutions ... CLOSED, except as necessary to facilitate online or distance learning" through the summer of 2020 (Ex. MET-MIA-087; Ex. MET-MIA-089; Ex. MET-MIA-091); Dallas County's order of March 16, 2020 addressing "schools and colleges" (Ex. MET-DFW-003); Camden County's closure of the Camden County Technical Schools' campuses and Camden County College's transition to virtual learning (Ex. MET-PHL-066; Ex. MET-PHL-068). Second, the 2020-21 campus orders: Denver's Public Health Order for institutes of higher education (Ex. MET-DEN-037; Ex. MET-DEN-015); Boulder County's confinement of student properties (Ex. MET-DEN-100); Philadelphia's order sending colleges online from November 20, 2020 (Ex. MET-PHL-010); Chicago's capacity specifications for "Higher Education" (Ex. MET-CHI-053) and its Emergency Travel Order from July 6, 2020 (Ex. MET-CHI-019; Ex. MET-CHI-020; Ex. MET-CHI-032, context); Dallas County's supplemental order instructing "institutions of higher education" to file a safety plan 72 hours before students returned to a classroom (Ex. MET-DFW-024); Bexar County's health directives extending to higher education and providing that "[c]olleges and universities should operate virtually" (Ex. MET-SAT-054; Ex. MET-SAT-056); Shelby County's Directive No. 9 naming "institutions of higher education" (Ex. MET-BNA-064); San Diego County's order of November 20, 2020 (Ex. MET-SAN-016); Utah County's order amid the college-age surge (Ex. MET-SLC-053); the District's travel-quarantine order under which "universities" could require affirmation of compliance (Ex. DC-081). Third, the college-town instruments that recite the campus: Ames, Bloomington and Monroe County, Stillwater, Starkville, Durham, Iowa City, Lawrence and Douglas County, Columbia and Boone County (Ex. IA-064; Ex. IN-085; Ex. OK-085; Ex. MS-070; Ex. NH-077; Ex. IA-067; Ex. KS-093; Ex. KS-095; Ex. MO-051). Fourth, the reimpositions of July through September 2021 in every large metro: the Philadelphia Board of Health's regulation mandating vaccination "in Higher Education" (Ex. MET-PHL-020; Ex. MET-PHL-021; Ex. MET-PHL-095, context); Denver's vaccination order for post-secondary personnel (Ex. MET-DEN-023) and Boulder County's universal indoor face-covering order, an airborne-transmission control on every indoor public space (Ex. MET-DEN-033); Dallas County's orders of August 12 and 16 with a health and safety policy for "Public Institutions of Higher Education" (Ex. MET-DFW-030; Ex. MET-DFW-031); Austin's and Travis County's orders adding "public colleges" (Ex. MET-AUS-025; Ex. MET-AUS-030; Ex. MET-AUS-031; Ex. MET-AUS-032; Ex. MET-AUS-050; Ex. MET-AUS-051; Ex. MET-AUS-053; Ex. MET-AUS-054); Bexar County's directive of August 10 (Ex. MET-SAT-066); Boston's indoor face-covering mandate of August 27, an exposure-control requirement on every indoor public space, reciting "the arrival of more than 50,000 college students" (Ex. MET-BOS-013; Ex. MET-BOS-019, context); the University of Minnesota's face-covering protocol binding "contractors, service providers, vendors, and suppliers" on every campus (Ex. MET-MSP-062); Los Angeles County's universal indoor face-covering requirement from July 17, an airborne-transmission control, and Long Beach's dormitory quarantine order (Ex. MET-LA-018; Ex. MET-LA-068); the Bay Area's eight-county indoor face-covering order of August 3 and San Francisco's vaccination-proof order of August 12, effective August 20 (Ex. MET-SFO-071; Ex. MET-SFO-010; Ex. MET-SFO-011); New York City's Key to NYC, Emergency Executive Order No. 225 of August 16, 2021, restated by Emergency Executive Order No. 228 of August 25, for the venues and dining rooms of every campus neighborhood (Ex. MET-NYC-017; Ex. MET-NYC-018); and the indoor face-covering orders of Chicago, St. Louis, Kansas City, Dane County, New Orleans, Baltimore, Charlotte and Mecklenburg, Multnomah County, Sacramento County, Clark County, Nevada, King County, Montgomery and Prince George's Counties, Columbus and Honolulu, each an airborne-transmission control imposed on every indoor public space and workplace within it (Ex. MET-CHI-026; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-MKE-023; Ex. MET-MSY-027; Ex. MET-BAL-017; Ex. MET-CLT-023; Ex. MET-PDX-014; Ex. MET-SAC-015; Ex. MET-LAS-006; Ex. MET-SEA-002; Ex. MET-DCM-023; Ex. MET-CMH-048; Ex. MET-HNL-035; Ex. MET-HNL-037).35
The sector regulators
This industry's sector regulators are the State university systems and their boards, which are instrumentalities of the State exercising governmental power over their campuses; the State higher-education agencies and health departments whose guidance the governors' orders made mandatory; the State boards of health; the legislatures that in 2021 prescribed campus policy by statute; and, at the federal level, the Department of Homeland Security's Student and Exchange Visitor Program, the Department of State's consular bureau, the President by proclamation, OSHA and the CDC. The systems acted first: the Iowa Board of Regents on March 10 and 14, 2020, the University System of Georgia on March 12 and 16, the Florida Board of Governors on March 11 and 17, the University of California, the California State University and the University of North Carolina System on March 17, the California Community Colleges Chancellor on March 19 and 27, and the City University of New York and the State University of New York from March 19 (Ex. SEC-27-008; Ex. SEC-27-007; Ex. AGY-ST-EDUCATION-HIGHER-ED-069; Ex. AGY-ST-EDUCATION-HIGHER-ED-027; Ex. AGY-ST-EDUCATION-HIGHER-ED-051; Ex. AGY-ST-EDUCATION-HIGHER-ED-028; Ex. AGY-ST-EDUCATION-HIGHER-ED-018; Ex. AGY-ST-EDUCATION-HIGHER-ED-019; Ex. AGY-ST-EDUCATION-HIGHER-ED-060), and the Iowa Board of Regents recorded the revenue consequence for its three universities on April 30, 2020 (Ex. AGY-ST-EDUCATION-HIGHER-ED-065). The health departments' guidance carried the orders' force where the orders incorporated it: New York's Interim Guidance for Higher Education under EO 202.45 (Ex. NY-112; Ex. NY-031); Oregon Health Authority's minimum standards under EO 20-28 (Ex. OR-021); California's institutions-of-higher-education guidance under the stay-at-home order and the Blueprint (Ex. AGY-ST-EDUCATION-HIGHER-ED-009); the Minnesota Department of Health guidelines under EO 20-85 (Ex. MN-029); the New Jersey Secretary of Higher Education's restart standards under EO 155 and EO 175 (Ex. NJ-024; Ex. NJ-032); the Washington requirements under Proclamation 20-12.1 and its successors (Ex. WA-038); Utah's public health orders naming institutions of higher education (Ex. UT-031; Ex. UT-034; Ex. UT-042). In the third quarter of 2021 the regulators of this industry were the Nevada State Board of Health (Ex. NV-055), the Philadelphia Board of Health (Ex. MET-PHL-021), the Denver Department of Public Health and Environment (Ex. MET-DEN-023), the Minnesota Management and Budget office for the Minnesota State system (Ex. MN-044), the Governors of Washington, Illinois and Virginia (Ex. WA-071; Ex. WA-079; Ex. WA-081; Ex. IL-042; Ex. VA-045), the University of California, the City University of New York and the trustees of Indiana University, Kansas State, North Dakota State and the University of Wyoming as State instrumentalities (Ex. SEC-27-001; Ex. SEC-27-011; Ex. IN-094; Ex. KS-096; Ex. ND-083; Ex. WY-060; Ex. WY-061), and the legislatures and governors of the prohibitory States (Ex. TX-037; Ex. FL-030; Ex. AZ-043; Ex. UT-045; Ex. MT-072), with Ohio's Am. H.B. 244 enacted in the quarter for effect on October 13, 2021 (Ex. OH-064). The Big Ten's postponement of its fall 2020 season on August 11 and its reinstatement on September 16, 2020 are conference actions and are stated as facts and circumstances only (Ex. AGY-ST-EDUCATION-HIGHER-ED-021; Ex. AGY-ST-EDUCATION-HIGHER-ED-022); the Department of Education's Title IV flexibilities and the CARES Act's relief-fund conditions are context for the federal government's own description of "the disruption of campus operations" (Ex. LAW-001).36
The counterparties
The counterparty orders are orders limiting commerce, travel and group meetings under the statute's text and under Q&A-12's own logic, which the United States has confirmed in the Ninth Circuit.
a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)Br. for Appellees at 41
The K-12 closure and hybrid orders of every State (Ex. GA-003; Ex. KS-005; Ex. NC-002; Ex. OH-003; Ex. IL-003; Ex. MN-002; Ex. NH-002; Ex. MS-005; Ex. NY-011) ended dual enrollment and student teaching, kept the faculty's and staff's children at home, and, in 2021-22, put every K-12 building the institution's education students entered under face-covering and quarantine orders (Ex. NJ-055; Ex. IL-040; Ex. KY-052; Ex. PA-042; Ex. NY-073; Ex. RI-055; Ex. DE-044; Ex. OR-045; Ex. NV-042). The hospital and long-term-care orders barred "all visitors and non-essential health care personnel," suspended elective services and, from June 21, 2021, imposed the Healthcare Emergency Temporary Standard on every clinical site in which the institution's nursing, allied-health and medical students trained (Ex. AL-005; Ex. FED-080; Ex. NY-071; Ex. CT-051; Ex. MD-058; Ex. ME-061; Ex. MA-067). The bars, restaurants and hotels of the college town were closed, capped and curfewed by every State's orders and, in Iowa, closed a second time in six university counties (Ex. IA-023). The transit agencies that carry commuting students and staff cut service under their emergency plans and ran under the federal conveyance order (Ex. MET-SDF-030; Ex. FED-020). The courts, clerks and licensing boards through which the institution's contracts and its graduates' licenses move operated under judicial emergency orders (Ex. FED-297; Ex. NM-064; Ex. NM-066; Ex. UT-051; Ex. UT-053; Ex. WI-029; Ex. SD-084). The consulates, ports of entry and immigration offices were closed, suspended and conditioned (Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. AGY-FED-LABOR-IMMIGRATION-061; Ex. FED-207; Ex. FED-208; Ex. SEC-15-005). The employers who hire the institution's graduates and sponsor its contract training were themselves closed, capped and sent home, which is the commerce the continuing-education function sells.37
The standing duties
Beneath the emergency orders inventoried above lay a layer that bound every campus employer in every State throughout the six quarters whether or not any order named it: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offense provisions that punished disobedience of health and emergency orders, and the liability shields that protected only the institution that complied with governmental standards, guidance and protocols. Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: a statute or rule that commands conduct is an order, and a legislature, a health department, a labor department and an occupational-safety agency are each such an authority; the pandemic directives gave each duty its content.38 The layer has three parts, stated here for the eight States whose instruments carry most of this page's proof; the site's standing duties pages carry every State and the District.
The first part is the orders themselves, which let a campus operate only on conditions stated in the imperative. Washington allowed general instruction from August 1, 2020 "only if they implement, follow, and enforce the requirements specified below" and provided that "No employer may operate ... unless the employer ... complies with all public health authority orders and directives" (Ex. WA-038; Ex. WA-040). Oregon provided that "in-person instruction, research, and residential activities at colleges and universities may only take place if they comply with the minimum standards described in paragraph 3" (Ex. OR-021). New York provided that higher education "must be operated in compliance with the guidance promulgated by the Department of Health" (Ex. NY-031; Ex. NY-112). New Jersey let institutions resume in-person instruction "subject to the requirements in Paragraph 4 of this Order," under which they "must submit a restart plan" (Ex. NJ-024; Ex. NJ-036). Virginia let establishments reopen "provided such businesses comply with the Guidelines for All Business Sectors," which the order made compulsory (Ex. VA-010; Ex. DUT-VA-014; Ex. DUT-VA-015). Illinois ordered in August 2021 that every person "shall be required to cover their nose and mouth with a face covering when in an indoor public place" (Ex. IL-042). Utah ordered that every institution of higher education "shall require each individual who is enrolled as a student ... to obtain a diagnostic test ... each week" (Ex. UT-029; Ex. UT-032). Texas ordered that "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment" (Ex. TX-021; Ex. TX-022).39 A measure the Service calls "beyond the order" was, in each of these States, the order's own condition of operating.
The second part is standing law, older than the pandemic, that commanded the same conduct under penalty. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health & Safety Code § 81.002, Ex. DUT-TX-001), with control measures on "an individual, animal, place, or object," a Class B misdemeanor for refusing them, a third-degree felony for disobeying a published quarantine order and a fine and confinement for violating an emergency order (Ex. DUT-TX-002; Ex. DUT-TX-006; Ex. DUT-TX-005; Ex. DUT-TX-012).40 Washington binds "Members of the general public" to "cooperate with ... Implementation of infection control measures" and makes willful violation of a gubernatorial order a gross misdemeanor (Ex. DUT-WA-007; Ex. LAW-340); New Jersey makes the Governor's orders "binding upon each and every person within this State" (Ex. DUT-NJ-006); and Oregon, New York, Virginia, Illinois and Utah attach misdemeanors and civil penalties to violation of any emergency order or health rule (Ex. DUT-OR-004; Ex. DUT-NY-001; Ex. DUT-VA-001; Ex. DUT-IL-014; Ex. DUT-UT-005).41 Section 5(a)(1) of the federal Occupational Safety and Health Act bound every private college and career school to "furnish to each of his employees employment and a place of employment which are free from recognized hazards" (Ex. DUT-FED-001), and OSHA cited employers under it from September 10, 2020 (Ex. AGY-FED-LABOR-IMMIGRATION-031; Ex. LAW-487).42 Each of the eight States states the same duty in its own statute, Texas as "a place of employment that is reasonably safe and healthful for employees" with "methods of sanitation and hygiene" and "all other actions reasonably necessary" (Ex. DUT-TX-013; Ex. DUT-WA-010; Ex. DUT-OR-005; Ex. DUT-NY-013; Ex. DUT-NJ-009; Ex. DUT-VA-005; Ex. DUT-IL-007; Ex. DUT-UT-011), Illinois's statute reaching its public colleges and the general duty clause its private ones, and six of the eight wrote the pandemic duty into a workplace rule with its own force of law (Ex. AGY-ST-LABOR-WORKPLACE-078; Ex. OR-032; Ex. VA-036; Ex. DUT-IL-004; Ex. DUT-UT-018; Ex. DUT-NY-014).43
The third part is the liability shields, by which the legislatures declared compliance the standard of care. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for actions commenced from March 13, 2020 (Ex. DUT-TX-014; Ex. DUT-TX-015). Oregon's only shield names this industry: a school, defined to include "a community college district," is immune only "When the school is operating in compliance with COVID-19 emergency rules in effect at the time of the act or omission" (Ex. DUT-OR-008). Utah set a culpability floor without a compliance clause and expressly preserved its Occupational Safety and Health Act (Ex. DUT-UT-013; Ex. DUT-UT-014); Illinois enacted no shield but conditioned rebuttal of its workers' compensation presumption on compliance with CDC and State health guidance (Ex. DUT-IL-005; Ex. DUT-IL-006; Ex. DUT-IL-012); Washington enacted none, and its standing rule makes breach of a statute or administrative rule evidence of negligence (Ex. DUT-WA-013); New York, New Jersey and Virginia shielded health-care providers only (Ex. DUT-NY-016; Ex. DUT-NY-018; Ex. DUT-NJ-007; Ex. DUT-VA-009).44 In all eight, compliance with governmental health standards is what an institution owed. A college that de-densified its lecture halls, tested its residence halls, screened and masked its staff and sent its offices home was not choosing; it was complying, and the answers to the Service's positions below proceed from that fact.
The ecosystem
The interconnected economy is the mechanism by which orders anywhere limited campus commerce everywhere, and the statute reaches it. Four mechanisms matter for this industry, and the interconnected-economy section below develops them. Travel and entry: the entry proclamations, the consular suspension, the SEVP rules, the land-border prohibitions and the conveyance face-covering regime governed every international student, visiting scholar and recruit and every commute (Ex. ECO-A-001; Ex. ECO-A-002; Ex. FED-207; Ex. FED-208; Ex. AGY-FED-LABOR-IMMIGRATION-012; Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. SEC-15-004; Ex. SEC-15-005; Ex. FED-232; Ex. FED-020), and the State travel quarantines governed every domestic student crossing a State line to move in (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. PA-021; Ex. NM-024; Ex. KS-053; Ex. HI-003; Ex. VT-080; Ex. ME-013; Ex. ME-026; Ex. MET-CHI-019; Ex. DC-081). Workforce: the school and child-care orders, the quarantine and isolation orders, the federal leave mandate and the vaccination-or-testing conditions governed who could come to work on a campus and when (Ex. FED-170; Ex. IN-092; Ex. KS-056; Ex. WA-079; Ex. IL-042; Ex. MN-044; Ex. VA-045). Gatherings and venues: the gathering caps, spectator orders, venue closures and convention-center conversions of every State governed athletics, performances, commencements, conferences and recruiting events (Ex. MS-036; Ex. DC-080; Ex. WA-102; Ex. UT-029; Ex. VA-013), and the Library's meetings records for this industry list the conventions, conferences, championships, commencements and recurring campus gatherings those orders disrupted in 2020 and 2021, with the venue jurisdictions' instruments and the organizers' stated actions. Supply and counterparties: the food-service, housing, bookstore and custodial contractors, the hospitals, the school districts and the college-town businesses were bound by their own orders. Foreign governments' orders (China's entry suspension; the European Union's list, from which the United States was removed on August 30, 2021; Canada's bar on discretionary entry by United States residents to August 9, 2021; India's lockdown) are stated as the facts and circumstances in which the federal instruments limiting travel and commerce with those countries operated, never as orders of an appropriate governmental authority (Ex. FOR-022; Ex. FOR-014; Ex. FOR-001; Ex. FOR-028).45