2020 was unprecedented for many reasons, including that Harvard University saw the results of and participated both as a plaintiff and as a friend of the court in several lawsuits involving public policy issues of great importance to higher education. The matters below are reported in the order in which decisions were issued or cases were otherwise resolved.
Guilford College, et al. v. McAleenan, et al., No. 1:18-cv-00891 (M.D.N.C. Oct. 23, 2018)
On August 9, 2018, DHS published a Policy Memorandum changing the way it “counts” days of unlawful presence for F, J, and M visa holders. The Policy Memo, which operated as a de facto rule, deprived F-1 international students and J-1 exchange visitors of any meaningful notice and opportunity to avoid potential 3- and 10-year bars on reentry into the United States.
The Immigration and Nationality Act provides that foreign nationals who accrue more than 180 days of unlawful presence and then depart are subject to 3- or 10-year bars to readmission, depending on how much unlawful presence they accrued before departing. Under a prior policy, which had been in place for 20 years, unlawful presence for F-1 students and J-1 exchange visitors only began to accrue after a formal finding of a status violation by a DHS officer or an immigration judge. The August 9, 2018 Policy Memo provided that the unlawful presence count would begin the day after a status violation (or on August 9, 2018, for those violations that occurred prior to that date), regardless of the date of any agency or IJ finding.
On December 21, 2018, Harvard, along with more than 60 institutions of higher education across the country, filed a brief in support of a preliminary injunction to invalidate the DHS Policy Memo, which introduced significant and destructive uncertainty and abruptly changed long-settled expectations. The brief detailed the benefits of international scholarship and the harms to U.S. higher education that would flow from the new DHS policy. Chief among those harms was that international students and exchange visitors could have been surprised with 3- and 10-year bars for technical and administrative errors of which they were unaware.
On February 6, 2020, the federal district court for the Middle District of North Carolina declared the DHS Policy Memo invalid and issued a permanent, nationwide injunction. A copy of the brief is available for review HERE.
Department of Homeland Security, et al. v. Regents of the University of California, et al., Nos. 18-587, 18-588, and 18-589 (U.S. Nov. 5, 2018).
There are more than one million undocumented individuals in the United States who arrived as children. The Deferred Action for Childhood Arrival (“DACA”) program protects certain of these undocumented immigrants from near-term deportation, allows them to work lawfully in the U.S., and enables them to travel abroad. Under DACA, protected students have access to educational and life opportunities on nearly equal terms with their peers. These individuals make enormous contributions to educational institutions like Harvard and to the country at large.
In 2017 the Department of Homeland Security announced a decision to sunset the DACA program. Ending DACA would have forced future scholars, innovators, and leaders to choose between withdrawing to the margins of our society and returning to countries that they have never called home. Because no student should live in constant fear of losing the opportunities they earned, the communities they think of as home, and the nation they love, Harvard, along with 18 other distinguished American institutions of higher education, filed an amicus brief supporting lawsuits brought by the University of California, the NAACP, and others urging the U.S. Supreme Court to invalidate DHS’s decision to end DACA. A copy of the brief is available for review HERE.
On June 18, 2020, the U.S. Supreme Court vacated the federal government’s memorandum rescinding DACA program, finding that it was arbitrary and capricious in violation of the Administrative Procedures Act. 140 S. Ct. 1891. A copy of the decision is available for review HERE.
International Students and Remote Instruction during the Pandemic
President and Fellows of Harvard College et al. v. United States Department of Homeland Security et al., 1:20-cv-11283 (D. Mass. July 8, 2020)
On March 13, 2020, the same day that President Trump declared a national emergency due to the COVID-19 pandemic, the Student and Exchange Visitor Program, a division of U.S. Immigration and Customs Enforcement (ICE), issued guidance relaxing a cap on online coursework so that international students could continue their academic programs at a time when courses were moving to remote instruction. On July 6, 2020, even though the government had not ended its declaration of a national state of emergency, ICE rescinded the March 13 guidance, stating that international students attending entirely online programs in the Fall 2020 term and beyond could not remain in or be allowed to enter the country.
Two days later, on July 8, 2020, Harvard and MIT sued the government in the U.S. District Court in Boston seeking a temporary restraining order prohibiting enforcement of the July 6 SEVP directive on several grounds, including that the decision to rescind the previous guidance, before the emergency conditions had abated, was arbitrary, capricious, and not the product of reasoned decision-making. The lawsuit was supported by many amicus briefs filed by other educational institutions, representatives of the business community, and unions, all recognizing the important contributions of international students to our nation and economy. A copy of the memorandum is available for review HERE.
On July 14, 2020, the United States government informed the court that it would withdraw the July 6 SEVP directive and reinstate the March 13 guidance, allowing international students to continue their studies in the United States on the same terms that applied at the beginning of the pandemic. A copy of the reply brief is available for review HERE.
OPT and STEM OPT
Washington Alliance of Technology Workers v. Department of Homeland Security et al., No. 1:16-cv-01170 (D.D.C. June 17, 2016)
Optional Practical Training (OPT) is a longstanding government program that provides a time-limited work allowance to international students present on F-1 visas, so that they may continue, and deepen, their education by applying the skills and knowledge they learn in the classroom to a professional setting, including (and most often) after graduation. STEM OPT provides an additional 24-month work allowance to students who graduate with degrees in STEM disciplines. OPT and STEM OPT not only provide untold benefits for international students, but also give American institutions of higher education an edge in the recruitment of students in an increasingly competitive global education market and benefit the U.S. economy.
Washington Alliance of Technology Workers, an advocacy group for workers in the tech sector, sued the government seeking a court order invalidating both the 24-month STEM OPT extension and the OPT program generally. Recognizing that without OPT or STEM OPT, the education that international students will receive in the United States would be less robust, and the ability of American colleges and universities to attract and educate the best and brightest from around the world would diminish, on November 21, 2019, Harvard and 117 public and private colleges and universities from across the country filed an amicus brief to defend the OPT and STEM OPT work allowances for F-1 international students. A copy of the brief is available for review HERE.
On November 30, 2020, the district court for the District of Columbia issued an order upholding the current OPT program. A copy of the order is available for review HERE.
Chamber of Commerce of the United States of America, et al., v. U.S. Department of Homeland Security, No. 4:20-cv-7331-JSW (N.D. Cal. Oct. 19, 2020)
Harvard, along with 24 other leading colleges and universities, filed an amicus brief urging a federal district court to set aside two interim final rules (“Rules”) promulgated by the Departments of Homeland Security and Labor that would have fundamentally altered the H-1B, H-1B1, E-3, EB-2, and EB-3 visa programs relied upon by these institutions to employ thousands of highly skilled international workers.
The abrupt announcement of the Rules, which bypassed the required notice-and-comment process for writing legally binding regulations, would have had dire consequences for colleges and universities. If allowed to remain in effect, the Rules would have considerably constrained colleges and universities in their ability to hire international scholars who provide critical contributions to research that drives our nation’s scientific progress, public health, and economic vitality. They would also have impaired universities’ hiring of valuable teaching staff, who educate our nation’s students so that they can go on to be, themselves, highly skilled and productive members of society. In turn, the Rules would have materially disrupted academic institutions’ planning for curricula and research programs and imposed an undue and unfair burden on teachers and scholars who, along with their families, have relied upon decades of well-settled immigration law to support their scholarship and research in the U.S. A copy of the brief is available for review HERE.
On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Rules on the ground that they violated the Administrative Procedure Act. A copy of the decision is available for review HERE.
Race & Sex Executive Order
Santa Cruz Lesbian and Gay Community Center, et al. v. Trump, et al., No. 5:20-cv-07741-BLF (N.D. Cal. Nov. 2, 2020)
Executive Order 13950, titled “Combating Race and Sex Stereotyping,” issued on September 22, 2020, imposed a vague prohibition that a federal “contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating” and would require grant recipients “to certify that it will not use Federal funds to promote” certain “Divisive Concepts” relating to race and sex. The Executive Order’s proscriptions threatened substantial, and yet equally vague, sanctions. Grant funding could be revoked, contracts terminated and contractors declared ineligible for further government contracts.
On October 30, 2020, Harvard, along with seven other public and private colleges and universities, all of which are recipients of major federal grants and contracts, filed an amicus brief urging the court to issue an order preliminarily enjoining Executive Order 13950 from taking effect on First Amendment and other grounds. Harvard initiated the amicus effort, engaged counsel, and helped enlist sister institutions to join on the brief.
The amicus brief pointed out that the order unfairly—and unlawfully—attempted to force amici to choose between preserving critical trainings and safeguarding their academic freedoms on the one hand, and forgoing needed federal funding for cutting-edge research on the other. A copy of the brief is available for review HERE.
On December 22, 2020, the United States District Court for the Northern District of California issued a nationwide preliminary injunction, which went into effect immediately and on a nationwide basis, to prevent much of the Executive Order from taking effect. As a result, private federal contractors and federal grant recipients, including Harvard and other colleges and universities, may conduct workplace training programs and related activities without facing penalties for “stereotyping” or “scapegoating.” In its decision, the district court took particular notice of the arguments made by the universities:
The amici curiae brief filed by 8 Institutions of Higher Education provides an additional valuable perspective on the impact of Section 5. Federal funding is crucial to university research, “providing over 60 percent of these institutions’ research budgets.” See 8 Institutions Amici Brief at 4, ECF 69. Federal funding has “yielded groundbreaking work on healthcare, supercomputing, psychology, artificial intelligence, and products used by the United States military.” Id. at 5. Most of that funding has little or nothing to do with the “divisive concepts” the Executive Order targets. Id. at 12. However, the restrictions described by Section 5 of the Executive Order appear to require universities that accept federal grants to curtail promotion of those concepts through teaching, training, and discussion. The 8 Institutions of Higher Education argue persuasively that “[s]cholars need to be able to give voice to, and indeed ‘endorse,’ opposing views in order for intellectual progress to occur. The Order inhibits this advancement—which is a core component of amici’s missions.” Id. at 15.A copy of the decision is available for review HERE.