Harvard and the Massachusetts Institute of Technology (MIT) filed suit this morning after ICE announced that they were rescinding the COVID-19 exemption for international students who are currently attending US universities.
The complaint emphasizes that this is a direct contradiction to the earlier stance taken by the administration. The federal government is retracting their stance that they recognized initially which was that public safety was met by universities if they were able to continue their mission of educating, virtually. Directly from the lawsuit, the plaintiffs pointed out that “on March 13, 2020, this recognition took the form of an ‘exemption’ issued by the United States Immigration and Customs Enforcement (“ICE”) to a preexisting rule that students in the country on certain nonimmigrant student visas (“F-1” visas) must attend most classes in person.” Due to ICE’s realization of the severity of this situation and acknowledging the value that international students hold in our higher education, “ICE provided that students holding those nonimmigrant visas could attend remote classes while retaining their visa status. At this time, the government made clear that this arrangement was ‘in effect for the duration of the emergency.'”
This guarantee by the government to keep this arrangement in effect for the entire emergency is particularly scrutinized by the plaintiffs. They argue that this contradiction hurts the entire industry, as most have been making plans to remain virtual to keep the community safe. They highlight that leading scientists and doctors have all stressed the need to limit large indoor human-to-human contact and this order clearly ignores that expert advice. As such, the suit declares that this announcement is forcing universities to reconsider their already “carefully calibrated, thoughtful, and difficult decisions to proceed with their curricula fully or largely online in the fall of 2020” in order to keep all of us safe.
The lawsuit also points out that this hurts the Higher Education industry in financial ways as well. With hundreds of thousands of students being shipped home, the loss of income for an already struggling economy will be substantial. The plaintiffs also were sure to highlight the great role that having diverse universities play on all of the student’s academic experiences. They indicated that this will have severe impacts on the role that international students play for creating the necessary diversity that our institutions need to foster optimal academics.
On count I, Harvard and MIT refer to a violation of the Administrative Procedure Act § 706 for being arbitrary and capricious due to the fact ICE fails to consider vital components of the problem before making the decision. Citing precedent from Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) the plaintiff explains that “the APA requires this Court to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion … or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Agency action that is not the product of reasoned decision-making is arbitrary and capricious.” Even further supporting their claim with the recent case of Department of Homeland Sec. v. Regents of the Univ. of Calif., No. 18-587, 2020 WL 3271746, at *13 (U.S. June 18, 2020) which held “An agency that “entirely fail[s] to consider an important aspect of the problem” before it has acted in an arbitrary and capricious manner.”
On count II, they indicate another violation of the Administrative Procedure Act § 706 for being arbitrary and capricious as another violation. That being, “because [the decision] fails to offer any reasoned basis that could justify the policy.”
Count III points to the “Violation of Administrative Procedure Act, 5 U.S.C. §§ 553, 706) The July 6 Directive Violates The APA’s Requirement Of Notice-And-Comment Rule-making” This count relies on the precedent that the Court is to hold an agency action such as ICE’s on July 6 as unlawful when it does not meet the procedural requirements outlined by law 5 U.S.C. § 706(2)(D).
As a result, the plaintiffs are requesting a temporary restraining order along with preliminary and permanent injunctive relief that will prevent the Defendants, Trump’s administration and ICE the right to enforce this policy announced on July 6.