The Volokh Conspiracy
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Judge Temporarily Blocks DHS's Revocation of Harvard's Ability to Allow Foreign Students and Exchange Visitors to Get Visas
This is the matter I wrote about yesterday; the judge issued a temporary restraining order "to preserve the status quo pending a hearing" on Harvard's preliminary injunction motion. The hearing is set for next Thursday morning (May 29). You can read Harvard's arguments for the TRO here; I expect its arguments for a preliminary injunction will be similar. From the Introduction:
For more than 70 years, Harvard University … has been certified by the federal government to enroll international students under the F-1 visa program, and it has long been designated as an exchange visitor program sponsor to host J-1 nonimmigrants. Harvard has, over this time, developed programs and degrees tailored to its international students and invested millions to recruit the most talented such students and integrate them into all aspects of the Harvard community. Yesterday, the government abruptly revoked Harvard's certification to host F-1 and J-1 students without process or cause, to devastating effect for Harvard and more than 7,000 Harvard students and affiliates on F-1 and J-1 visas.
The government's revocation of Harvard's certification was not a product of the ordinary review process set out in detailed regulations that define the limited circumstances under which a school's certification may be revoked and put a premium on the due process rights of institutions and students. On its face, the revocation is part of the government's broader effort to retaliate against Harvard for its refusal to surrender its academic independence.
In response to the government's disagreement with the perceived viewpoints of Harvard, its faculty, and its students, the government issued a series of demands requiring Harvard to submit to government oversight of the faculty it hires, the students it admits, and the courses it teaches. When Harvard declined, the Administration unleashed the full power of the federal government, freezing billions in federal grants, proposing to eliminate Harvard's tax-exempt status, opening multiple federal investigations, and—most relevant here—threatening to terminate Harvard's participation in the F-1 and J-1 visa programs.
Yesterday, the government made good on that threat—and it did so via a letter that makes plain that DHS is not even pretending to follow its own regulations, either as to process or as to substance. Instead, DHS all but announced that the revocation is blatantly in retaliation for Harvard's exercise of its academic freedom.
Revoking Harvard's certification is unlawful many times over. It is a pillar of our constitutional system that the government cannot "invok[e] legal sanctions and other means of coercion" to police private speech, especially when the government's treatment is animated by viewpoint discrimination. NRA v. Vullo (2024) (quoting Bantam Books, Inc. v. Sullivan (1963)). Prohibitions on viewpoint discrimination and on retaliation for protected speech are at the core of the First Amendment's protections. And especially so here, because "academic freedom" is "a special concern of the First Amendment." Keyishian v. Bd. of Regents (1967). The government's effort to punish the University for its refusal to surrender its academic independence and for its perceived viewpoint is a patent violation of the First Amendment.
The government's action also violates the Administrative Procedure Act ("APA") and the Fifth Amendment in ways that underscore that what is really going on here is not a concern that Harvard has a noncompliant F-1 visa program, but rather undisguised retaliation. The revocation is quintessential arbitrary, irrational, and unilateral executive action.
The government bypassed its own regulatory framework, which—recognizing the school's and its students' weighty reliance interests—specifies detailed procedures and standards for withdrawing a school's certification. At the same time, DHS ran roughshod over procedural due process protections, not to mention the procedural protections in its own regulations. DHS imposed a penalty that is wholly unprecedented, and which it has no authority to impose under the circumstances. And DHS's explanation in its letter—which vaguely gestures toward unexplained "reporting requirements" and then declares that DHS will "root out the evils of anti-Americanism"—is the quintessence of arbitrary and capricious agency decisionmaking.
Emergency relief is essential. Effective immediately, Harvard may no longer sponsor or host F-1 or J-1 visa holders. The thousands of international students who were scheduled to arrive on campus for the upcoming summer and fall terms will no longer be able to enter the country. DHS has informed Harvard that the thousands of international students currently on campus— many just days from receiving their degrees—must transfer immediately to another institution to remain in the United States. Countless academic programs, laboratories, clinics, and courses that these students support will be thrown into disarray. Classmates, teammates, and roommates will be immediately separated.
All told, the revocation upends Harvard's decades of work and extensive investments to cultivate the programs, opportunities, personnel, and reputation that allow Harvard to attract the most talented international students and integrate them into its community, many of whom will go on to engage in pioneering research, invent groundbreaking technologies, and start thriving businesses here in America. The effects on Harvard's students—all of its students—will be devastating. Without its international students, Harvard is not Harvard….
