Dep't of Homeland Sec. v. Regents of Univ. of Cal. et. al., No. 18-587 (U.S. S.Ct. June 18, 2020)

In a case in which the AAUP joined an amicus brief, the Supreme Court allowed the Deferred Action on Childhood Arrivals (DACA) program to stand. The DACA program allows undocumented immigrants brought to the United States as children to remain in the country legally and expands access to higher education by providing eligibility for in-state tuition and state-funded grants and loans to participants. The court found that the Trump administration had not followed proper administrative procedure in seeking to overturn DACA, particularly the forbearance of deportation, and had acted arbitrarily and capriciously in doing so. The ourt noted, “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” While the ruling leaves open the possibility that this administration may try again to overturn DACA, this decision is a major victory for the dreamers and their supporters.

The Trump administration moved to end DACA in 2017, but federal courts blocked that attempt. Following a brief hiatus, the government began accepting renewal applications from DACA participants, which must be filed every two years. In January 2018, a federal court issued an order that blocked the government from ending the program; similar orders from two other courts soon followed. In an unusual move, the Trump administration came directly to the Supreme Court late last year, asking the justices to weigh in on two questions: whether the decision to end DACA is the kind of action that courts can review at all; and, even if it is, whether the decision to end the program was legal. Just a few days after the government petitioned for review in the Supreme Court, the Court of Appeals for the Ninth Circuit upheld one of the district court’s orders requiring the Trump administration to keep the DACA program in place. The Supreme Court consolidated these cases and on June 28, 2019, it granted the Government’s petition for writ of certiorari.

The AAUP, together with forty-three educational associations, signed onto an amicus brief prepared by the American Council on Education to the Supreme Court of the United States in support of upholding the Deferred Action for Childhood Arrivals (“DACA”) program in the consolidated DACA (also known as “Dreamers”) cases, Dep't of Homeland Sec. v. Regents of Univ. of, 2019 U.S. LEXIS 4407 (9th Cir. 2018).  The amicus brief supports upholding DACA, emphasizing that “DACA has been a symbol of tolerance and openness of our university campuses,” and warning that rescinding DACA would broadcast to other foreign-born students and potential students from around the globe a “message of exclusion” and “irreparably damage the reputation of America’s higher education system in the eyes of the world.” The brief argues that if the Supreme Court allows the administration to end DACA all those gains would be reversed: “In an instant, it would send a message of exclusion that would irreparably harm our institutions’ ability to recruit and retain foreign-born students. It would tear at the fabric of our campus communities. Most importantly, it would pull the rug out from under the Dreamers themselves, who have upended their lives—taking out loans, earning degrees, and taking the risk of revealing their undocumented status—in reliance on DACA. In the words of one DACA recipient, the rescission would mean that ‘all the hard work I have put into my goals would be for nothing, and I would be back to the bottom where I started.’”

The amicus brief also speaks to the government’s contention that the executive branch’s decision to rescind DACA is wholly exempt from judicial review. “Sanctioning that remarkable argument would threaten to immunize from legal scrutiny numerous other major decisions disguised as ‘enforcement policies’ that impact our higher education system,” the brief says.  The brief urges the Supreme Court to affirm the lower court judgments keeping DACA in place, saying that, “The Court should not write the Administration a blank check to make this monumental policy choice without even a patina of judicial review.” Finally, the brief endorses DACA as “an unmitigated good for this country, its higher education system, and the young persons whom it has benefited.”