How a college, university, community college or career school operates
The typical employer described here is a private college, seminary or career and technical school with 500 or fewer full-time employees in 2019, the large-employer line Congress drew for 2021 (100 for 2020), or a public community college or regional university of the same size, eligible for the 2021 quarters under section 207 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 and section 3134(f) of the Code.1 Its trade or business is the assembly of students, faculty and staff in lecture halls, laboratories, studios, shops, clinics, residence halls, dining halls, libraries, gymnasiums, stadiums and auditoriums, on a calendar fixed a year in advance, in exchange for tuition, fees, room, board, gate, rentals, grants and gifts. Every one of those functions is a group meeting for a commercial, social or other purpose and every one of them is commerce; that is why the orders reached them in terms. The Suspension Clause asks whether "the operation of the trade or business" was fully or partially suspended, and a partial suspension is "a temporary delay, interruption, or termination of a portion [of] an employer's business."2 The twelve functions below are the portions. This section describes them in the operational terms an order can reach, the revenue lines that depend on them, the counterparties without which they cannot run, the workforce that performs them and the calendar on which they turn, and it closes with the counterparty map that the sections on the layers, the quarters, the functions and the interconnected economy apply.
IN: in-person instruction and laboratories
Instruction is the core function and the largest revenue line. At a four-year college it is lectures, seminars, discussion sections, laboratories, studios and performance instruction delivered in rooms built for assembly; at a community college and a career school it is also the shop, the clinic and the simulation lab, the welding bay, the automotive lift, the nursing skills laboratory, the dental-hygiene operatory, the culinary kitchen, the cosmetology floor and the commercial-driving range, none of which exists outside the building and none of which can be operated by a student at home. Each course is scheduled a semester ahead into a room whose capacity fixes the enrollment; faculty are hired and assigned by course load; tuition is billed by credit hour on the assumption that the course will be delivered in the mode in which it was sold. Every March 2020 order prohibited the in-person form of this function (Ex. WA-008; Ex. OR-059; Ex. VA-006; Ex. GA-009; Ex. AL-005; Ex. NJ-002; Ex. SC-002; Ex. WY-004), or confined educational institutions to "distance learning, performing critical research, or performing essential functions" (Ex. IL-005; Ex. OH-011; Ex. OK-007), and every fall 2020 order conditioned its return on an approved plan, a capacity limit, a distancing rule, a face-covering rule, a testing regime and a reporting duty (Ex. WA-038; Ex. OR-021; Ex. NY-112; Ex. NJ-024; Ex. MN-029).3 Utah's Legislature then 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 Washington's Governor prohibited in-person instruction at any institution that did not verify the vaccination status of every student and unmasked employee (Ex. WA-071; Ex. WA-081).
HS: housing and dining
Residence halls and dining halls are operated by the institution or by a food-service and housing contractor under a multi-year contract, staffed by residence-life, custodial, security and dining employees, and billed by the semester in advance. A residential college fills its halls in August and empties them in May; its dining contract is priced on board-plan counts; its housing bond covenants assume occupancy. In March 2020 the halls were emptied by directive: the University System of Georgia announced that "residence halls will be closed, with minimal exceptions" and that students "are not allowed to return to campus until they receive permission" (Ex. SEC-27-007); the Florida Board of Governors directed that "students who can return home should return home" (Ex. AGY-ST-EDUCATION-HIGHER-ED-027); Alaska designated "college and university dormitories" and Vermont designated "dormitories" as non-congregate quarantine shelter (Ex. AK-016; Ex. AK-033; Ex. VT-013); Montana, Illinois and Michigan excepted "university dining" and "school and university cafeterias" from restaurant closures precisely because the closures otherwise reached them (Ex. MT-005; Ex. IL-004; Ex. MI-061). In fall 2020 the halls reopened at reduced density under State conditions covering "quarantine and isolation capacity," "residential living plans," "protocols for capacity limits" and dining-hall operation under the food-services guidance (Ex. NY-112), under Washington's housing and dining requirements (Ex. WA-038; Ex. WA-046) and under Oregon's minimum standards for "residential activities" (Ex. OR-021); Utah ordered weekly testing of every student who "lives in on-campus housing" (Ex. UT-029); Boulder County ordered the residents of 36 identified student properties to stay at home (Ex. MET-DEN-100); and in the third quarter of 2021 Nevada conditioned enrollment at every public campus on vaccination (Ex. NV-055) and the City of Long Beach's Health Officer quarantine order of September 15, 2021 required contacts "in ... dormitories" to quarantine for fourteen days (Ex. MET-LA-068).4
AT: athletics, performances and campus events
Intercollegiate athletics, theater and music performances, lectures, reunions, festivals and the rental of arenas and halls to outside promoters produce gate, food and beverage sales, media, sponsorship and rental revenue and are group meetings in the most literal sense. The gathering caps of every State reached them from March 2020 (Ex. NJ-002, gatherings limited to 50; Ex. VA-006, gatherings of more than ten prohibited; Ex. WY-005); the spectator orders of 2020-21 fixed their capacity (Ex. MS-036, college stadiums at 25 percent of bowl seating with game-day gatherings prohibited; Ex. MS-051, college arenas at 50 percent; Ex. DC-080, high-contact sports prohibited except for universities under approved plans; Ex. WV-056; Ex. UT-029, organized athletic events and extracurricular gatherings prohibited); and Washington's spectator-event requirements governed every stadium and arena, "professional, higher education and K-12," through September 2021 (Ex. WA-102). The conferences' postponements of the fall 2020 season are facts and circumstances, not orders (Ex. AGY-ST-EDUCATION-HIGHER-ED-021).5
RS: research, clinical training and field work
Research is conducted in laboratories, field sites, archives and clinics under federal and State grants and contracts (12.6 percent of private nonprofit revenue and 13.8 percent of public revenue with State grants), with graduate students, post-doctoral fellows and technicians on the payroll. Clinical training places nursing, allied-health, dental-hygiene, pharmacy, social-work and education students in hospitals, clinics, long-term-care facilities and schools whose own orders governed access. The stay-at-home orders confined research to "critical research" (Ex. IL-005; Ex. OH-011; Ex. WV-039); Oregon subjected "research ... at colleges and universities" to minimum standards from June 14, 2020 (Ex. OR-021); Minnesota's Higher Ed Plan requirement reached "clinical rotations or placements ... internships ... and all research activities" (Ex. MN-029); Minnesota's protective-equipment inventory order reached every "institution of higher learning" holding N95 respirators, gowns and gloves (Ex. MN-007); the hospital and long-term-care orders closed the elective services and the facilities in which clinical students trained (Ex. AL-005, visitation of "all visitors and non-essential health care personnel" prohibited); and the OSHA Healthcare Emergency Temporary Standard governed every campus health center and clinical program in which any employee provided healthcare services from June 21, 2021 (Ex. FED-080).6
AD: admissions, orientation, commencement and recruiting
Admissions runs on campus visits, open houses, accepted-student days, orientation sessions and recruiting travel, and it runs a year ahead of the enrollment it produces; commencement is the institution's largest annual gathering and its principal alumni event. The gathering caps and stay-at-home orders closed the campus to visitors in spring 2020 and the system directives cancelled commencements (Ex. SEC-27-007: ceremonies "will not be held as originally scheduled"); West Virginia's order of June 19, 2020 had to authorize "holding or participating in graduation ceremonies" in terms (Ex. WV-039). International recruiting depends on consulates and entry: the State Department suspended routine visa services worldwide on March 20, 2020 and resumed them post by post from July 2020, with routine services not restored in most posts through 2021 (Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. AGY-FED-LABOR-IMMIGRATION-061); the entry proclamations suspended the entry of persons present in China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India through November 8, 2021 (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); 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); and the Student and Exchange Visitor Program fixed the terms on which an F-1 or M-1 student could study online and remain in status in March 2020 and July 2020 (Ex. SEC-15-004; Ex. SEC-15-005) and carried the March 2020 terms into the 2021-22 academic year in its stakeholder guidance (Ex. AGY-FED-LABOR-IMMIGRATION-073, agency guidance cited as context).7 First-time enrollment fell 13.1 percent in fall 2020 (Ex. SEC-15-007).
ST: student services
Student services are the health center, the counseling center, the library, the recreation center, the bookstore, the child-care center, the testing center, the career office and the dean of students, each a physical premises open to the public of the campus. The New Jersey Office of Emergency Management closed "all libraries and computer labs at public and private colleges and universities" by Administrative Order 2020-3 of March 20, 2020 and permitted curbside pickup only from June 13, 2020 by Administrative Order 2020-15, instruments recited in the Governor's later orders; recreation centers fell under the gym closures of every State (Ex. NJ-002; Ex. WY-004); health and counseling centers fell under the OSHA Healthcare Emergency Temporary Standard from June 21, 2021 (Ex. FED-080); and the testing centers that the fall 2020 orders required (Ex. NY-112; Ex. UT-029; Ex. RI-033) were a new function the orders created.8
CE: continuing, workforce and community education
Community colleges and career schools sell contract training to employers, dual-enrollment courses to school districts, summer camps and conferences to youth organizations and associations, and facility rentals to the community. Each depends on a counterparty's ability to assemble: the K-12 closures ended dual enrollment and student teaching for the 2019-20 year (Ex. GA-003; Ex. KS-005; Ex. NC-002; Ex. OH-003); the gathering caps ended camps and conferences; and Iowa's proclamations relieved "community college and high school requirements" and community-college teaching loads because the ordinary operation could not be met (Ex. IA-009; Ex. IA-039).9
PY: State systems, boards, accreditors and funders
A public institution answers to a governing board, a State system office and a State higher-education agency; a private institution answers to its accreditor, its State authorizing agency, the Department of Education under Title IV and the licensing boards that approve its nursing, cosmetology, commercial-driving and allied-health programs. In March 2020 the systems acted as State instrumentalities: the University of California closed its Office of the President and moved the system remote on March 17 (Ex. AGY-ST-EDUCATION-HIGHER-ED-051); the California State University accelerated its transition to virtual instruction by systemwide directive the same day; the California Community Colleges Chancellor suspended Title 5 withdrawal and grading rules by executive order (Ex. AGY-ST-EDUCATION-HIGHER-ED-018; Ex. AGY-ST-EDUCATION-HIGHER-ED-019); the Iowa Board of Regents moved all classes at its three universities online (Ex. SEC-27-008); the University of North Carolina System, the University System of Georgia and the City University of New York did the same (Ex. AGY-ST-EDUCATION-HIGHER-ED-028; Ex. AGY-ST-EDUCATION-HIGHER-ED-069; Ex. AGY-ST-EDUCATION-HIGHER-ED-060). In 2021 the legislatures and governors of fifteen States prescribed, as their terms reach public institutions, what those boards could require (Ex. AZ-043; Ex. FL-030; Ex. TX-037; 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), and Congress wrote into the CARES Act that its higher-education relief was for "the disruption of campus operations due to coronavirus" and "significant changes to the delivery of instruction due to the coronavirus."10
HR: hiring, screening, training and credentialing
Faculty searches run on campus visits; adjuncts are hired by the semester; international faculty and post-doctoral scholars arrive on H-1B and J-1 visas; clinical faculty hold licenses that the boards renew; every employee is onboarded with a Form I-9 inspection. Proclamation 10052 suspended the entry of H-1B and J-1 workers from June 24, 2020 to March 31, 2021 (Ex. ECO-A-011; Ex. ECO-A-012); the consular suspension stopped the visa appointments (Ex. AGY-FED-LABOR-IMMIGRATION-060); and the third quarter of 2021 made vaccination status a condition of employment on campus by governmental order in Washington (Ex. WA-079), Illinois (Ex. IL-042), Minnesota (Ex. MN-044), Virginia (Ex. VA-045), Philadelphia (Ex. MET-PHL-021) and Denver (Ex. MET-DEN-023).11
OP: office, administration and telework
The registrar, bursar, financial-aid, admissions, advancement, human-resources and facilities offices are office workplaces reached by every telework mandate and office-closure order: New York's 100 percent in-person workforce reduction for non-essential entities from March 22, 2020 (Ex. NY-002), New Jersey's telework mandate (Ex. NJ-004), Pennsylvania's closure of every business that was not life sustaining with the proviso that the prohibition "does not apply to virtual or telework operations" (Ex. PA-002; Ex. PA-003; Ex. PA-004), Massachusetts's closure of non-essential brick-and-mortar premises (Ex. MA-008), Connecticut's reduction of non-essential in-person workforces to zero (Ex. CT-007), New Mexico's 100 percent remote-work requirement (Ex. NM-006), the University of California's closure of its Office of the President (Ex. AGY-ST-EDUCATION-HIGHER-ED-051) and the University System of Georgia's direction that institutions remain open "with minimal staff physically on-site" (Ex. SEC-27-007); and by New York's office-work guidance, which applied to "higher education administration" and capped occupancy at 50 percent (Ex. NY-131).12
WF: workforce availability
Faculty and staff live in the college town and its county, commute by car, campus shuttle and transit, and have children in the local schools and child-care centers. The school-closure orders of every State kept them home in spring 2020 and the hybrid and remote orders of 2020-21 kept them home by the day; the quarantine and isolation orders of the State health departments excluded exposed and infected employees "from schools, preschools, daycare settings, employment, and public places" for ten to fourteen days per exposure (Ex. IN-092; Ex. KS-056; Ex. KS-057); the Families First Coronavirus Response Act required every employer under 500 employees to provide paid leave to any employee "subject to a Federal, State, or local quarantine or isolation order" or whose child's "school or place of care" had been closed, from April 1 to December 31, 2020 (Ex. FED-170); the federal conveyance order governed every campus shuttle and commuter bus from February 1, 2021 (Ex. FED-020; Ex. FED-051; Ex. FED-052); and the vaccination-or-testing orders of the third quarter of 2021 made every unvaccinated employee a weekly-tested employee or an excluded one (Ex. WA-079; Ex. IL-042; Ex. MN-044; Ex. VA-045). The COVID Project's Education and Child Care analysis carries the school and child-care orders State by State.13
CB: students and families under travel, quarantine and visa orders
The customer base is students and the families who pay for them. Every stay-at-home order confined them to a residence; the travel-quarantine orders of New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, Vermont, Maine, Rhode Island, New Mexico, Kansas, Hawaii, Alaska, Chicago and the District required arriving and returning students to quarantine for ten to fourteen days or test (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. PA-021; Ex. MD-023; Ex. VT-012; Ex. VT-080; Ex. ME-013; Ex. ME-026; Ex. RI-008; Ex. NM-024; Ex. KS-053; Ex. HI-003; Ex. AK-012; Ex. MET-CHI-019; Ex. DC-081); the entry proclamations and the consular suspension reached the international student body; and the 2021 vaccination conditions on enrollment (Ex. NV-055; Ex. SEC-27-001; Ex. SEC-27-011; Ex. IN-094) decided who could be a student at all. Vermont's travel order defined "essential travel" to include "travel to attend PreK-12 school and college if commuting daily," which is to say that every other trip to a campus was non-essential travel subject to quarantine (Ex. VT-080).14
Revenue lines, seasonality and geography
The revenue lines are tuition and fees (33.7 percent of private nonprofit revenue and 19.5 percent of public revenue in 2019-20), auxiliary enterprises (10.0 percent and 13.9 percent: housing, dining, bookstores, parking, athletics gate and food and beverage sales, camps, conferences and rentals), federal, State and local grants and contracts, gifts, investment return and, for public institutions, State appropriations (Ex. SEC-27-020; Ex. SEC-27-021). Each line depends on a physical function the orders reached: tuition on enrollment and on the mode of delivery for which it was priced; auxiliaries on occupancy, board counts, gate and bookings; grants on laboratory access and field work; gifts on reunions, galas and the athletic seasons that produce them. The calendar is fixed: fall move-in in the third and fourth weeks of August, the semester through mid-December, the spring semester from mid-January to early May, commencement in May, summer sessions, camps and conferences from June to early August. The March 2020 orders fell at mid-semester and cancelled the last third of the spring term, commencement and the summer program; the fall 2020 orders fell on move-in and fixed the terms of the whole year; the 2021 statutes were enacted between April and June while the fall 2021 term was being planned and sold; and the Delta-wave orders of August and September 2021 fell on move-in again. Geography is national: 3,931 degree-granting institutions in every State, concentrated in college towns whose commerce (bars, restaurants, hotels, landlords, bookstores, transit) the campus carries and whose orders recite the campus (Ex. IA-023; Ex. IA-064; Ex. IN-085; Ex. OK-085; Ex. MS-070; Ex. NH-077; Ex. MET-DEN-100; Ex. MET-SLC-053; Ex. MO-051).15
The counterparty map
Each counterparty class was reached by orders of its own, and each of those orders limited the commerce of the institution. The K-12 school districts that supply dual-enrollment students, host student teachers and employ the faculty's children's teachers were closed by order in every State in spring 2020 and operated under State hybrid, remote, face-covering and quarantine orders through 2021 (the layers section below; the Education and Child Care analysis). The hospitals, clinics and long-term-care facilities that host clinical placements suspended elective services, barred non-essential personnel and, from June 21, 2021, operated under the OSHA Healthcare Emergency Temporary Standard (Ex. AL-005; Ex. FED-080; the Hospitals and Health Systems analysis). The food-service, housing, bookstore and custodial contractors that run the auxiliaries were bound by the dining, occupancy, face-covering and exposure-control 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). The athletic conferences and the venues that host tournaments and performances were bound by the spectator, gathering and venue orders of every State (the Fitness, Arts, Entertainment and Sports analysis). The hotels, restaurants and bars of the college town that house and feed visiting families, recruits, conference attendees and students were closed, capped and curfewed by the State and county orders, and in six Iowa university counties were closed a second time in August 2020 because of campus outbreaks (Ex. IA-023; the Hotels, Travel and Tourism and Restaurants and Food Service analyses). The transit agencies that carry commuting students and staff operated under the federal conveyance order and their own service reductions (Ex. FED-020; Ex. MET-SDF-030, the University of Louisville campus shuttle suspended March 20, 2020). The consulates, ports of entry and immigration offices through which international students, faculty and scholars arrive were closed, suspended or conditioned by the State Department, the President and the Department of Homeland Security (Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. FED-207; Ex. SEC-15-005). The courts and public offices through which the institution's contracts, permits and disputes move operated under judicial emergency orders (Ex. FED-297; Ex. NM-064; Ex. UT-053). The event planners, caterers, florists and production companies that stage commencements, galas and reunions were closed with their venues (the Weddings, Events and Production Services analysis), and the religious institutions that sponsor seminaries and church-affiliated colleges were bound by the worship gathering caps (the Religious Organizations and Nonprofits analysis). The layers section inventories these orders by layer; the function-by-function section applies them; the interconnected-economy section states them as orders under the statute's text and the Notice's own Q&A-12.16