California Challenges Changes to Student Visa Rules

The arguments run parallel to those in the Harvard/MIT lawsuit

|The Volokh Conspiracy |

Last week, I blogged about ICE's announcement that international students taking online-only classes could lose their visa status, and about the ensuing lawsuit by Harvard and MIT to enjoin this action. On Thursday, the state of California launched its own lawsuit in district court in San Francisco.

The legal arguments are largely the same: that the rule change was arbitrary and capricious, and that the federal government failed to follow notice-and-comment procedures. California is the first state to sue the Trump administration over this issue, which is unsurprising for several reasons including the facts that the California Community Colleges system, as the complaint mentions, "represents the largest postsecondary system in the United States" and that California is dealing with a renewed surge of COVID-19 cases. The implications of this spike for schools and universities are, of course, profound. The complaint does not mince words: "California higher education institutions are faced with an impossible choice: create in-person classes that would heighten the risk of exposure to COVID-19 for their students, staff, and community in order to keep their student bodies intact, or lose an integral part of their student bodies altogether."

The complaint highlights that "[t]he July 6 Directive is clear that there is no safe harbor for institutions operating in the 'hybrid' model that decides to switch to online-only classes in the middle of the semester should the public health crisis demand it". This is unsurprising to this reader given that there is no safe harbor even for universities that cannot safely open due to the current public health crisis, much less potential future episodes of spikes. The situation of students in hybrid (or even in-person) models that could turn into online ones is, however, relevant in its own right from a reliance point of view. I suspect that the sentiment of the federal government is that if international students do not like the risk that could result from mid-semester shifts to online-only education, they can just go home now. That argument should fail, however, given the lateness of the government's announcement, among other reasons.

Meanwhile, almost 60 universities have filed an amicus brief in support of Harvard and MIT in their lawsuit. Judge Allison Dale Burroughs has set a hearing for tomorrow, with the goal of arriving at a decision by the next day.

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  1. Obama appointed judge has “goal of arriving at a decision by the next day”. A judge “most notable for her order putting a hold on President Donald Trump’s travel ban in January 2017” wiki

    I will be on the edge of my seat for the result. A real nail biter.

  2. They could just follow the rules. They could spend money to make their facilities safe for everyone.

    Private sector institutions have to follow rules and make their facilities safe for their workers and customers. Why is it too much to ask for universities to do the same?

    1. Private companies, and their employees, aren’t penalized fro letting people work from home.

      More important, why TF do you care? Wait, I know. Its all about the “rule of law,” nothing to do with animus toward foreign students. Right.

      Look. This is just a reprehensible action by Trump, the only purpose of which is to get people like you cheering.

      1. I get tired of jerks and their infinite list of petty complaints. The people who complain the most are somewhere between unfriendly and extremely hostile to ordinary Americans on a regular basis. So why should we listen to their complaints?

        Have they earned any goodwill?

        1. I have tired of clingers — in particular, their backwardness, bigotry, ignorance, stale thinking, and disdain for reason and the reality-based world.

          So people like me stomp them in the culture war.

          The casualties of our settled-but-not-completed culture war get to complain about this as much as they like. Losers have rights, too.

          1. “Settled but not completed culture war……”

            Haha. Keep waiting. And don’t change a thing.

        2. “Ordinary Americans?”

          I get tired of jerks too, though we probably differ on who the jerks are petty.

          Anyway, I’m wondering who the jerks are, in your opinion, and why their complaints are petty.

          1. When clingers say “ordinary Americans,” they refer to decidedly below-average Americans.

        3. I get tired of jerks and their infinite list of petty complaints.

          Self-loathing is not a pretty sight.

      2. How are schools being penalized at all?

        1. Their student body is being disrupted with potential deportation.

          I can tell you the university labs I work with are feeling VERY penalized at the moment.

          Maybe the administrators will be able to gin up a some quicky in-person programs, but for now what was once certain is now up in the air.

          Needless risk to our intellectual workforce.

          1. No need to “gin up” anything. Just hold regular, in-person classes, like always.

            1. This isn’t always, Ben.

          2. “intellectual workforce”

            College students aren’t “workforce”.

            “F-1 students must show that they are able to support themselves during their stay in the U.S., as their opportunities for legal employment are quite limited.” wiki

            1. Depends on the college student. Some badasses do work in our labs.

              Besides, it’s not just college students. It’s also graduate students. And they most certainly are part of our intellectual workforce.

              1. If they need to be on site (for example for lab work) they qualify for a visa.

                If they don’t, because all their classes are online-online, they don’t.

                1. Thanks to computers, a not all lab work need be done on site.

          3. Sarcastr0, the bottom line is that the colleges and universities can fix this themselves. They have complete power and can autonomously do so. That is a fact. If you are telling me that learned academics cannot figure out in 45 days how to hold an in-person class safely, maybe these students are getting ripped off. The bottom line is that if these universities want the money, they’ll have to figure out a way to make in-person classes happen, that comply with regulatory requirements.

            They need to whine less about the government and do more to help their customers students.

            1. I, thank goodness, do not to university policy.

              I can only tell you that I’m seeing a *lot* of anxiety in the labs I work with based on this policy change.

              Those that claim this ain’t no thing are ignoring reality.

              As to *why* it’s a thing, I don’t know (though I do plan to ask).

      3. And the foreign students could also work from home.

        1. Visas, once lost, are not easy to get back.

      4. After 9-11-01, we decided we wanted to know where foreign students were. Obama had no problem with this rule.

        1. This is a pretty indirect and ham-handed reg to just know where foreign students are.

  3. I’m confused how this argument works. If this choice was arbitrary and capricious, certainly the initial waiver was as well.

    1. The initial waiver had a factual predicate in the document itself (COVID). This has no factual predicate.

      There was no reliance interest implicated in the initial waiver. Withdrawing it does implicate such interests.

      1. I feel like this just stacks the deck in favor of lawlessness. If Trump randomly waives the self employment tax I can “rely” on this and buy a new car, but when the next guy comes in and re-instates it I doubt I’d win such a case.

        In normal land people understand temporary/emergency orders are temporary and have to be re-affirmed through a formal process if they are to be extended, not that they will only be ended by a formal process.

        1. You’ve switched from is to ought.

          Taking reliance interests into account is the state of the law. I don’t know how that will play before a court, but it’s not a frivolous pleading.

          Understanding that something is temporary does not mean you don’t rely on it. What should foreign students have done, even if they knew the waiver was temporary?

          1. “What should foreign students have done, even if they knew the waiver was temporary?”

            Refused to pay tuition deposits until schools committed to a course of action that would guarantee they got visas while following the law, and then engage in litigation against the schools that renege on those commitments. The fault, from my POV, is almost 100% with schools who have been dishonest.

            1. If you think that’s the requirement COVID put on these students, you’re crazy.

      2. So no good deed goes unpunished — Trump should have deported all of them in March. And you wonder why Middle America holds the legal system in contempt.

        1. That would have wrecked the US basic research enterprise.

          Not that you care about such things.

        2. Trumpkins are not “Middle America.” Trumpkins are a rump group of the dregs of society.

  4. They were granted visas so they could attend college in the US. Their school has gone to online classes exclusively, thus they don’t have to be here to attend.
    So, what’s the problem with revoking a visa that is no longer necessary?

    1. If you’re still asking that question after any number of threads and articles on the subject it’s pointless to try to answer you.

      1. I have seen an article or two saying the policy was already in place, and that the administration jumped at the chance to enforce it–that it wasn’t a “change” per se. So perhaps his question is valid, even if not quite as sympathetic as you’d like?

    2. Because it’s all a charade, anyways…

  5. I do wonder about those taking chemistry, engineering, physics, or biology classes. They all have labs. Can’t do a lab over the internet. Of course, all the political science, philosophy, economics, psychology, sociology, history, and English majors could just soldier on from home, secure in the knowledge that nothing they do has a place in the actual physical universe.

  6. Here I thought California schools were supposed to primarily cater to the needs of Californians.

    If the foreign students drop the university simply because they need to take online classes from the comfort of their foreign mansion, its pretty obvious that the university is simply in the business of selling visas

  7. That there was a “rules change” is a lie. There was no rules change. This has always been the rule. ICE allowed foreign students to finish the Spring semester online. But the requirement for in-person classes has always been the rule.

    Please stop lying about this.

    1. Formally, you are incorrect, since the waiver changed the rule, and this changed it back.

      Functionally, you are even more incorrect, because the waiver maintained the status quo despite COVID, and this change pulled the rug out.

      So maybe you should quit accusing people of lying because they don’t hew to your pinched and ignorant narrative.

      1. No Sarcast0, it is you who lie.

        A temporary advisory does not change a rule.

        1. Calling me a liar, Ed? About such a trivial thing? Mistaken perhaps (I’m not – guidance is a subset of rulemaking, just not formal rulemaking.)

          Makes one wonder how easily you lie.

      2. Your own language betrays you. To waive a rule is not to change a rule. When the waiver expires or is rescinded the rule remains. To say the rule was changed is a lie.

        To say Trump changed this rule is the same as saying Trump put children in cages.

        1. The enforcement of a rule is the effective rule, TP.

          Guidance is a regulatory action, just as much as formal rulemaking.

    2. Leaving aside useless words like “lie”, is it the case, or is it not the case, that the applicable regulations required in-person attendance by foreign students before the COVID outbreak? Is it the case, or is it not the case, that the Govt. waived that requirement earlier in the year for foreign students who were already enrolled when their colleges had to shift to on-line classes because of COVID? Is it the case, or is it not the case, that the Govt. is now saying that the waiver will not be extended for the upcoming semester?

      With answers to these questions reasonable people ought to be able to agree on whether what the Govt. is doing makes sense or not.

      1. Good point! “were already enrolled”

        So, OK, if you enroll in in-person classes that are then cancelled.
        But you gotta enroll in them first.

  8. The mean-spiritedness to the end with respect to immigration and other issues may pay dividends next year, during the intramural debates concerning whether Democrats should be restrained in use of power.

    The Trump administration is providing plenty of ammunition to the “step on the conservatives’ necks, starting with the Supreme Court” side of that argument.

    1. You do know that Obama enforced this rule, shuttering so-called “diploma mills”…..

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