ACE and 70 other higher
education associations filed
a brief this morning supporting the first of several legal challenges to
the Trump administration’s new directive which, among other things, prohibits
international students from remaining in the United States if their colleges hold
courses online-only this fall as the country continues dealing with the
COVID-19 pandemic.
Harvard University and MIT sued
the Trump administration in U.S. District Court in Boston last week seeking to
block the directive—issued July 6 by the Immigration and Customs Enforcement
(ICE), part of the Department of Homeland Security (DHS)—because it is
arbitrary, capricious, and does not observe the requirements of the Administrative
Procedures Act. The associations’ amicus
brief focuses on the directive’s “enormous, immediate and unconsidered
hardships” for international students, their classmates, institutions, and
communities. Left unchecked, DHS’s departure from established administrative law
norms and its failure “to take into account the chaos it will unleash” will
severely harm higher education institutions and international students. They
also are concerned about the threat it presents to the global standing and
reputation of the United States as the global leader in international
education.
Given the immediate,
irreparable, and far-reaching harms the directive will cause without so much as
a hint of countervailing benefit, the associations are requesting the court to
grant preliminary injunctive relief immediately.
For international students
whose colleges will have online-only programs this fall, the directive says
they “must depart the country or take other measures, such as transferring to a
school with in-person instruction to remain in lawful status” or face
consequences “including but not limited to the initiation of removal
proceedings.” In addition, if an institution were to pivot to online
instruction mid-semester in response to the pandemic, international students
would be forced to leave the United States.
Colleges that plan to offer
entirely online courses must inform DHS by July 15. In addition, institutions that
will be offering solely in-person classes, delayed or shortened sessions, or a
“hybrid plan” of in-person and online instruction must update their operational
plans with the DHS Student and Exchange Visitor Program by Aug. 1. Institutions
operating under a “hybrid plan” will need to reissue new I-20 forms for all
international students by Aug. 4. (To read an ICE FAQ, click here.)
ACE President Ted Mitchell said
in a statement
last week that the directive is “horrifying” and deprives institutions and
international students of the flexibility they need to respond to the differing
circumstances and public health conditions at individual campuses.
The Council, along with 82 other
associations, sent a letter
July 10 to DHS urging that the directive be rescinded. DHS should instead grant a one-year waiver for international students who have a valid F-1 or M-1 visa and are enrolled or entering the United States to begin a full-time course of study in an academic program that is conducted online or may shift to remote instruction during the semester.
As CNN has reported, the Harvard/MIT lawsuit contends that
ICE's decision not to provide an exemption for online-only courses puts them in
an "untenable situation" of either proceeding with their plans to
operate fully or largely online or attempt to provide in-person learning. President
Trump has been putting pressure on both K-12 schools and colleges and
universities to physically reopen this fall, which may explain at least in part
the ICE directive.
The University of California
system also has announced that it will sue, and a coalition of 18 attorneys
general filed
suit today in U.S. District Court in Massachusetts. ACE is likely to file
similar briefs in these other cases.