Around 40 higher education institutions filed declarations in support of the lawsuit, including Yale University, DePaul University, the University of Chicago, Tufts University, Rutgers University and state universities in Illinois, Maryland, Massachusetts, Minnesota and Wisconsin
A Donald Trump administration effort to force foreign college students to take in-person classes in the fall or lose their visas has prompted a high-stakes legal battle between the White House and some of America’s top universities, with 17 states and the District of Columbia joining the fray Monday in a lawsuit that calls the policy “senseless and cruel.”
The visa guidelines, issued a week ago, would upend months of careful planning by colleges and universities and could force many students to return to their home countries during the pandemic, where their ability to study would be severely compromised.
The confrontation comes as the White House is pushing colleges and K-12 schools to throw open their doors to students, even as a growing number decide that it’s not safe. Many universities have chosen to allow a limited number of students on campus but to teach most classes virtually — a decision that Trump has derided as “ridiculous.” Late last week, as his annoyance with universities grew, Trump threatened their non-profit status.
Harvard University and the Massachusetts Institute of Technology, both of which plan mostly online classes, were the first to challenge the new visa rules in court, saying they were hastily implemented in violation of federal procedures. Their lawsuit last week set up a high-stakes hearing scheduled for Tuesday afternoon, a day before the government is requiring schools to certify that students are taking in-person classes to meet the visa requirements.
Dozens of universities have weighed in with Harvard and MIT, and California’s attorney-general and several universities filed their own suits in federal court late last week seeking to block the directive.
“The president is using foreign students as pawns to keep all schools open, no matter the cost to the health and well-being of these students and their communities,” said Mark Rosenbaum, a lawyer with Public Counsel, a legal aid organisation in Los Angeles representing foreign graduate students at three California universities. “It’s temper-tantrum policy-making.”
The administration responded in court filings Monday that Immigration and Customs Enforcement has the discretion to set student visa guidance, and that just because universities don’t like the requirements doesn’t make them against the law.
The government also pointed out that the directive allows foreign students to take more online classes than they could have a year ago, when only one virtual course was allowed. The agency had waived that requirement in March, as the pandemic swept across the country and forced college campuses to abruptly close.
Universities have argued that the state of emergency declared by the president in March remains in effect, so the waived visa rules should, too.
“The Trump administration didn’t even attempt to explain the basis for this senseless rule, which forces schools to choose between keeping their international students enrolled and protecting the health and safety of their campuses,” Maura Healey, the Massachusetts attorney-general, said in a statement announcing the suit she filed Monday with 16 other states, which accuses the administration of violating the Administrative Procedure Act.
At stake is the fate of possibly tens of thousands of students from all over the world who are enrolled in American universities this fall, where they represent both a major source of academic brainpower and a vital revenue stream for institutions that face deep financial losses in the pandemic.
The federal guidance issued on 6 July has sent students scrambling to enrol in in-person classes that are difficult to find, if they are available at all.
Harvard Medical School’s plan to move instruction online would force students like Ayantu Temesgen of Ethiopia to return home. But the Ethiopian government last month shut down the country’s internet amid deadly civil unrest, and even if it returns, the time difference would be difficult to overcome.
“If I’m back home, I won’t be able to wake up at 3 am or 2 am to attend my classes,” Temesgen said.
In their lawsuits, universities and the state attorneys general suggest that the new guidance is part of a politically motivated attempt to force universities to reopen, against their better judgment of the health risks.
“The same day as the announcement of the administration’s reversal, the president of the United States made repeated public statements expressing the view that schools must reopen in the fall,” the lawsuit filed Monday by the states says, citing a tweet by the president saying, in all capital letters, “SCHOOLS MUST OPEN IN THE FALL!!!”
The government said in its response that it had an interest in keeping close tabs on foreign students, and allowing them to study online and untethered from a university campus posed a security risk. “A solely online program of study provides a nonimmigrant student with enormous flexibility to be present anywhere in the United States for up to an entire academic term, whether that location has been reported to the government, which raises significant national security concerns,” it said.
In a harbinger of how the case may fare, the Supreme Court ruled in June that the Trump administration may not immediately proceed with its plan to end the Deferred Action for Childhood Arrivals program, protecting about 700,000 young immigrants known as “Dreamers” from deportation. In the majority opinion, Chief Justice John Roberts wrote that the court did not decide whether rescinding the program was sound policy, only whether “the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
The dispute illustrates the seismic shifts in how education is being delivered during the pandemic, and the consequences of that change. Online education has achieved new primacy even at prestigious institutions like Harvard that previously relegated it mainly to lower-status programs like extension courses.
But the move to online learning has prompted immigration authorities to ask why, if classes can be attended from anywhere in the world, students need to be in the US to earn their degrees.
“You don’t get a visa for taking online classes from, let’s say, University of Phoenix. So why would you if you were just taking online classes, generally?” White House press secretary Kayleigh McEnany told reporters at a news conference last week.
International students say this is a narrow view of what studying abroad is all about, and that being in the US may lead to research and job opportunities that ultimately enrich the country and its economic, cultural and intellectual life.
Meeting the demands of the government’s new guidance would be extremely difficult, universities say. Just weeks before school is scheduled to begin, they would have to rejigger classes to make sure that hundreds of thousands of international students would have an in-person option.
“The alternative is to lose significant numbers of students from their campuses,” the suit filed by state attorneys general says.
The area represented by the plaintiffs contains 1,124 colleges and universities, with some approximately 373,000 international students enrolled in 2019, who contributed an estimated $14 billion to the economy that year, according to the complaint.
Around 40 higher education institutions filed declarations in support of the lawsuit, including Yale University, DePaul University, the University of Chicago, Tufts University, Rutgers University and state universities in Illinois, Maryland, Massachusetts, Minnesota and Wisconsin.
Anemona Hartocollis c.2020 The New York Times Company
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