The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After lawsuits by Harvard/MIT and then California about the recent changes to the student visa rules, seventeen more states have filed their own lawsuit (in district court in Massachusetts, where the Harvard/MIT suit was already filed). Like the preceding lawsuits, the plaintiffs allege that the federal government violated the Administrative Procedure Act by engaging in arbitrary and capricious decision-making and failing to provide for notice and comment. Because the claims largely track those of the previous lawsuits, I will note here only a few excerpts that captured my attention.
This lawsuit nicely captured the absurdity of the requirements imposed on universities through the sudden and belated change:
Now, with insufficient notice, zero explanation, and severely depleted resources, colleges and universities are forced to readjust all of those plans to account for whether every single international student, in every single program, will have sufficient in-person learning opportunities to maintain their visa status in the United States--a determination they must make before many students have registered for a single class, while many faculty and staff are absent from campus due to the pandemic or on leave for the summer, and while the pandemic's course this summer and autumn remains worrisome and unclear.
The plaintiffs also go after the motives of the federal government, stating that "the Administration has expressly acknowledged these coercive effects of the July 6 Directive and even indicated that the directive was actually intended to pressure into reopening, overriding the deliberative planning by Plaintiff States to ensure the health and safety of students, faculty, staff, and the broader community." As evidence, the complaint among other things reprints a screenshot of President Trump's tweet from the same day, July 6, in which he exclaimed: "SCHOOLS MUST OPEN IN THE FALL!!!".
This complaint convincingly shows why universities lacking flexibility and having to choose between following state mandates and retaining their international student population make no sense in a pandemic. I have seen multiple casual (and some less casual) observers ask why international students taking online classes "need" to be in the country. While that's potentially a fair question during normal times, the real question at this time is not why online-only students should generally be able to be in the United States (which they are not). Rather, the question is why students should be sent back who 1) sought an in-person experience that became partly or completely impossible due to a pandemic, 2) were told back in March that they could stick with online classes for the duration of an emergency which has by no means abided, and 3) have now made financial and other investments according to that information. Let's not get lost in red herrings.