The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I blogged yesterday about the federal government's declaration on July 6 that international students enrolled at universities that have moved to online instruction for this fall are at risk of losing their visa status. Harvard and MIT have now filed a complaint in district court to enjoin the so-called July 6 Directive, arguing that it fails to conform to the Administrative Procedure Act (APA).
As I and others suspected yesterday, one of the key issues is the one of reliance. The complaint highlights that the so-called March 13 Guidance, which relaxed the pre-existing restrictions on international students taking online classes, specified that the March rule change would remain "in effect for the duration of the emergency". The complaint goes on to state that "[t]he President's national emergency declaration has not been rescinded or terminated" and that coronavirus continues to constitute an emergency, with the number of cases not having greatly decreased and in fact spiking in some places.
After describing the significant steps that Harvard and MIT have taken to move most of their instruction online, the complaint emphasizes the many costs that students have incurred in reliance on the March 13 Guidance, such as by taking out loans or signing leases. At this point, if they have to return to their home countries, these students would have to "abandon housing arrangements they have made, breach leases, pay exorbitant air fares, and risk COVID-19 infection on transoceanic flights. And if their departure is not timely, they risk detention by immigration authorities and formal removal from the country that may bar their return to the United States for ten years." Once home, the students in some countries would be unable to pursue their education properly or at all due to time zone variations as well as "unavailable, unreliable, or state-managed Internet connections, and other barriers to online learning."
Any school that attempts to keep its (sometimes thousands of) international students in the United States under the rules for hybrid models–which combine in-person and online instructional components–would have to get all these students' I-20 forms reissued within 21 business days of the new directive. According to the complaint, "Doing so is not only unduly burdensome, but, in many cases, impossible because students are generally not required to register for particular classes until closer to the start of the semester."
The complaint alleges three violations of the APA. The first allegation is that the July 6 Directive is arbitrary and capricious because it fails to consider important aspects of the problem and fails to address the serious reliance interests involved. The second is that the directive is arbitrary and capricious because it fails to offer a reasoned basis to justify the change. The third is that the directive violates the APA because it "is a substantive rule that alters students' and universities' rights and obligations under the law" and ICE did not provide the requisite "good cause" for failing to follow the usual notice-and-comment procedure. Among other relief, the complaint requests a temporary restraining order, preliminary and permanent injunctive relief, and an order vacating the July 6 Directive and reinstating the March 13 Guidance.