How important is university autonomy during and after a pandemic?

The thing about the English higher education “market” is that depending on who you are and where you sit, the actions of a “provider” can either be framed as pure altruism, understandable under the circumstances, or pure evil. Or all three at once.

Do you remember that week when we knew there was a pandemic and changes to A level exams but there wasn’t yet a lockdown? First a trickle, then a flood of undergraduate applicants reported on social media that their offer had been converted to unconditional. Some framed that as offering essential reassurance to stressed students. Some said “as usual, Government incentivises competition then complains when people compete”. Others saw it all as “bums on seats” manipulation that threatened to put some universities in serious jeopardy if others hoovered everyone up to compensate for lost international numbers.

The debate has circled round for weeks – but now, building on the moratorium on unconditional offers that’s been imposed since March 23rd, the Office for Students has proposed a new condition of registration that takes the effectively voluntary agreement to “calm” the market – and turns it into one of the rules. And what a rule that will be.

Competing pressures

The regulator is trying to deal with a bunch of things for a bunch of people all at once here. Providers are concerned about a loss of income – but OfS wants to see high standards of probity and good governance. Prospective students want to go to university – but need an admissions process that is “fair and transparent”. Current students need to know that their university “will be able to continue delivering high quality courses”. And potential future students will be best served by a system that “continues to offer a wide range of course options”. And let’s not forget those “already more vulnerable” when information, advice and guidance is less readily available than normal.

How do you square all of that? Partly through student number controls (SNCs) – where DfE’s proposal is that providers will be allowed to recruit full-time, domestic students up to five per cent above their forecasts in the next academic year to help reduce volatility and ensure a fair and orderly admissions. The government will also have the discretion to allocate an additional 10,000 places, with 5,000 ring-fenced for nursing, midwifery or allied health courses to support the country’s vital public services.

It’s basically the UUK proposal on SNCs with a hint of the MillionPlus add on, added on. There are major questions about whether that forecast +5 per cent proposal would provide the stability touted – and we also don’t quite know yet how the proposal will work, other than being told that “the government will control these numbers through the student finance system”, which sounds like a statement of political principle than a regulatory proposal.

And there’s more

But SNCs for home undergrads doesn’t cover everything – not least international recruitment or shoring up your PG numbers. So as well as SNCs, there’s another market “calming” measure in the mix to replace the moratorium – some speed bumps to accompany its pre-existing speed limits and traffic lights, if you will.

OfS is formally proposing and consulting on a new, temporary condition of registration in the “E” category (management and governance) that will outlaw:

Conduct that could reasonably have a material negative effect on the interests of students and the stability and/or integrity of all or part of the English higher education sector.

If that sounds wide – it’s because it is. It’s another of these huge, open-to-interpretation regulatory nets designed to catch all sorts of recruitment and admissions behaviours. It’s significant – the new condition would enable OfS to consider imposing penalties that would “cancel out any financial benefit to providers of acting inappropriately”. And it doesn’t so much chip away at, as kicks a big chunk out of, institutional autonomy.

Leave us alone

The very first thing that many in the sector will argue when looking at the proposal is that this is some kind of attack on the right of universities:

to determine the criteria for the admission of students and apply those criteria in particular cases.”

But to be fair to OfS, it has been clear on this before (not least on our site), and is clear here:

Our current judgement (which we will revisit in light of consultation responses) is that the interests of students outweigh the autonomy of providers, including in relation to admissions matters, in a way that in more usual times might not be the case.

Annex D goes on:

Section 2(8) of HERA defines institutional autonomy … and includes in that definition matters relating to admissions. It does not, however, impose an absolute obligation on the OfS to protect the autonomy of providers in this, or any other, area and the OfS is required to balance each of its general duties, giving more or less weight to each in a particular context.

In formulating these proposals we have given particular weight to achieving competition where that is in the interests of students. We have also given weight to quality because significant unplanned expansion in some providers and contraction in others raises risks to quality for students. In the exceptional circumstances of the coronavirus pandemic, our judgement is that the interests of students outweigh the autonomy of providers, including in relation to admissions matters, in a way that in more usual times might not be the case.

But what about choice? Over the past few weeks various sector big names have argued that if student A wants to go to provider B and provider B wants to let them in, why would we deny them their “agency”? OfS has an answer for that that’s pretty hard to argue with, at least in principle:

In considering these issues we have considered the interests of current students, which are likely to be served by stability across the sector, to ensure that as many existing providers as possible are able to mitigate the financial risks raised by the pandemic such that they can continue to deliver high quality courses.

This may sit in tension with the interests of the cohort of students making choices about what and where to study in the 2020-21 academic year as, for some of these students, less regulatory control over the admissions system might provide greater choice. Beyond 2020-21, the interests of future students are likely to be served by regulatory interventions to preserve the stability and integrity of the sector so that a wide range of providers continue to exist to support student choice and quality.

Fixing problems

What is the question to which OfS has an answer? As the pandemic started to hit, OfS notes that there was concern that providers may change recruitment strategies and “destabilise the sector” – the “share the pain” objective that, full disclosure, I’ve personally been a fan of in principle for weeks now.

Not only would hoovering up home undergrads put some providers in the “market” in jeopardy, it would also generate some institutional behaviours that risk “distorting” student decision-making and would “take advantage” of behavioural biases at a time when information, advice and guidance for students is less available than normal.

So here’s what’s proposed. As noted above, all providers on the register will have to avoid conduct that could reasonably have a material negative effect on the interests of students and the stability and/or integrity of all or part of the English higher education sector.

I’ve bolded those three concepts because the proposed E6 condition goes on to define them all, in extraordinarily wide ways:

• “Conduct” can mean taking action, or failing to take action, as well as isolated behaviour by one provider or as a similar pattern of behaviour by more than one higher education provider (whether or not there is any form of express or tacit coordination)!
• “English Higher Education Sector” includes (but is not limited to) any activities of higher education providers in England that are registered with the OfS, and any part of the sector or any class of higher education providers.
• And “stability and/or integrity” (in the context of the English Higher Education Sector) covers financial and economic matters, matters relating to good governance, matters relating to admissions practices including offers to students, matters that may directly or indirectly have an impact on the interests of past, present or future students; and any matters that may “negatively affect public trust and confidence” in the sector!

Maybe all this will get narrowed down in the consultation, and maybe it’s a type of extreme sabre-rattling. But it’s effectively saying that as well as SNCs for home undergrads, almost any competitive behaviour might now be banned.

Not only that, but OfS will take into account the fact that the conduct of a single provider in isolation “may not have a material negative effect on the stability and/or integrity of the sector”, but such conduct in combination with similar conduct from other providers may have such an effect. There will be no “herd immunity” for you!

How do you mean

As ever with OfS registration conditions, we get a non-exhaustive list of the sorts of things it doesn’t want to see to illustrate – although unusually we don’t get a list of what providers might do to recruit students in the next few months that would constitute compliance. You get the impression that every dark fantasy hanging around the admissions review of “bad” behaviour has been chucked in here to see what will stick. Examples include:

• Conditional unconditional offers
• Making lots of unconditional offers (or very low offers)
• Offering gifts or discounts designed to attract students away from their original choices
• Making false or misleading statements (including comparative claims) about one or more providers
• Using financial support packages made available by the government for purposes that do not serve the interests of students or the public
• Failing to secure the standard of qualifications awarded to students
• Making offers to international students that significantly lower the academic or language requirements for a course
• Seeking to circumvent the spirit or purpose of requirements in primary or secondary legislation
• Taking advantage of OfS relaxing particular regulatory requirements during the pandemic
• Failing to comply with [any] public commitment (!) For example, “publicly agreeing to abide by voluntary requirements (such as a code of practice) and failing to comply with such requirements”
• And even “bypassing, or seeking to bypass, the admissions processes of the University and Colleges Admissions Service (UCAS), where the provider would normally use UCAS processes”

It’s not clear whether these examples represent things OfS has already seen providers do, or things that it imagines they could do if they get desperate – but either way it helps explain why the proposed net is so wide, and reads like a brainstorm of almost any “competitive” behaviour that could be framed negatively now that there’s a pandemic on.

Perhaps my favourite is suggesting that it would be bad to make inaccurate claims “that other providers are failing to support or provide tuition to students during the coronavirus pandemic” when it’s hard to see how any provider can be making accurate claims about its own provision come September – but that’s a different blog from a different day.

All you can do is step back in time

One of the big questions that arises from all this is timing. Various behaviours that the proposed new condition seeks to outlaw took place weeks ago – first a large number of offers got magically converted to unconditional within hours of the lockdown being announced, and then various other behaviours (like making very low conditional offers or making offers to international students that significantly lowered academic or language requirements) were tried, caught and defined in revision one of the moratorium.

So how do you consult on and introduce a change to the rules of behaviour and deal with a) what’s happened already, and b) what happens between now and the change coming into effect? Here OfS has found a form of words that lawyers will have fun with – it appears to be proposing to backdate the new registration condition to March 11th (the date the WHO declared a global pandemic) by proposing to outlaw:

…conduct taking place from 11 March 2020, before the date the condition would come into effect, where that conduct forms part of a series of events continuing beyond the date on which this condition would take come into effect.”

Say again?

A continuum of events would include all the steps leading up to a binding contract being entered into between a student and higher education provider. It follows from this that, where a provider makes an offer of admission to an applicant, further steps are necessary for a binding contract to be formed, including acceptance of the offer by the applicant.”

In other words – if you’ve already made an offer that OfS would find a problem come late May/early June, it’s expecting you to withdraw it – OfS thinks that this would be legally possible because a contract would not be formed until the student has formally communicated their acceptance of the offer.

Where an offer has already been accepted, OfS would “not normally envisage” that it would be appropriate for providers to “seek to terminate the contract” in an attempt to comply with the condition – but even so. Applicants holding a pandemically-lowered offer that haven’t accepted yet are going to get very upset if and when it gets withdrawn over the next couple of weeks. And who knows what action a provider could take against OfS if it decides to withdraw a bunch of offers and the new registration condition doesn’t get introduced after all!

A big decision

A big thread in all this is that these are extraordinary and unprecedented times – which call for extraordinary and unprecedented measures.

There’s surprisingly little documented interrelationship between this OfS proposal and the SNCs proposal – it’s not actually even clear what role OfS will play in SNCs. Ironically, some analysis suggests that providers at the “top” of the tables all recruiting their fill of forecast UGs +5% would result in a large number of others collapsing. If they’ve read the London Economic analysis on this, does that mean recruiting to cap might still be seen as “conduct that could reasonably have a material negative effect on the stability of the English higher education sector”?

But here’s the thing. Take a step back, and the measures proposed can be read as an amazingly wide and remarkably strong attack on institutional autonomy. OfS is saying that the sector can’t be trusted to compete in a fair way – even more so in a pandemic – so is banning a very wide set of behaviours that may never again be allowed.

And so the sector is going to have to ask itself whether this, right now, is the hill it wants to die on – whether in the interests of autonomy, it demands the right in its consultation responses or legal challenges or intemperate tweets to do any of the things OfS is framing as bad.

Months and months ago, when Damain Hinds was writing to the sector about unconditional offers, we carried a blog from Smita Jamdar questioning the legality of the intervention – and a canny commenter added underneath:

I think it is curious that anyone in the sector would want to grandstand on our independence, something that we should cherish, treasure and protect at all costs, in defense of an activity that is wholly anti competitive, not in in the interests of applicants or schools and is contrary to all the guidance of transparent admissions. This action simply risks us being seen to look weak, insecure, introspective and out of touch.

Couldn’t have put it better myself. The question is whether the sector can – or should – read the room.

The deadline for responses is noon on 26 May 2020.