Harvard and Massachusetts Institute of Technology v. Department of Homeland Security, No. 1:20-cv-11283 (D.C. MA, July 13, 2020)(amicus brief filed)

Following a legal challenge, supported by an amicus brief in which the AAUP joined, the US Department of Homeland Security (DHS) rescinded a directive that, during the COVID-19 crisis, foreign students engaged entirely in online study would not be allowed in the United States. In March 2020, DHS and Immigration and Customs Enforcement (ICE), issued guidance that, for the duration of the COVID-19 emergency, F-1 and M-1 visa holders were allowed to participate in online education while remaining in the United States. On July 6, 2020, DHS issued a new directive that rescinded this COVID-19 exemption for international students, requiring all students on F-1 visas whose university curricula are entirely online to depart the country and barring any such students currently outside the United States from entering or reentering the United States. Shortly after DHS issued the directive, Harvard University and the Massachusetts Institution of Technology filed a complaint in the US District Court in Massachusetts for declaratory and injunctive relief, to prevent the directive 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 amicus brief was prepared by the American Council of Education (ACE) and was joined by over seventy higher education organizations. The brief emphasized the harm caused to the foreign students and to the reputation of the US higher education system. “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 brief also called 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 violated fundamental concepts of fairness, is arbitrary and capricious, and does not comport with the tenets of administrative law.

On July 14, 2020, federal district court judge Allison Burroughs held a hearing on the plaintiffs’ motion for injunctive relief that sought to prevent the government from implementing the directive. At the start of the hearing Judge Burroughs announced that the government had agreed to rescind the July 6 directive, and the related July 7 FAQs, and to cease all implementation of that guidance. Thus, the directive has been voided and ICE will revert to the guidance it issued in March that allows students taking online courses to reside in the United States on F-1 visas. The administration could seek to reissue guidance that reiterates, in whole or part, the July 6 directive. However, there are strong legal objections to the underlying basis for any similar guidance. Further the court has retained jurisdiction, which would help promptly resolve the legality of any future guidance.