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Volokh Conspiracy

California Challenges Changes to Student Visa Rules

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


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.