AAUP Joins Amicus Brief Opposing DHS Directive

The AAUP joined over seventy other higher education organizations yesterday in submitting an amicus brief, prepared by the American Council on Education (ACE), in support of a legal challenge filed by Harvard University and the Massachusetts Institute of Technology against the US Department of Homeland Security in the US District Court in Massachusetts. The challenge seeks to prevent DHS’s July 6 directive, which rescinds a prior COVID-19 exemption for international students participating in online education, from taking effect so that thousands of international students can continue to participate in educational opportunities in the United States, even if their course of study is online. The directive requires all students on F-1 visas whose university curricula are entirely online to depart the country and bars any such students currently outside the United States from entering or reentering the United States. Significant portions of the directive are effective on July 15, 2020.

The amicus brief notes that “with the stroke of a pen, the global standing of our nation and its preeminent higher educational system will needlessly suffer again from exclusionary policies that—contrary to long-held national values of openness and interconnection—single out international students and arbitrarily threaten their eligibility to collaborate, learn, and share their many talents at American colleges and universities.” 

The AAUP’s stance in the brief is consistent with its July 13 statement on the ruling and its efforts to protect faculty and students during the pandemic. The brief calls out the administration for seeking to compel a Hobson’s choice between the safety of those on campus and the removal of foreign students: “if . . . the public health and safety of . . . campuses and communities counsels in favor of completely virtual courses in the fall, the cost of doing so—under DHS’s about-face—is that their international students will be subject to immediate removal from this country.” All of this was done by the administration on extremely short notice, and with virtually no explanation or apparent consideration of the impacts of the directive. Thus, the directive violates fundamental concepts of fairness, is arbitrary and capricious, and does not comport with the tenets of administrative law.

The brief concludes with a request for immediate preliminary injunctive relief. Read a summary of the brief.