Harvard and MIT Sue to Overturn Order Banning International Students from Online Learning in Residence
Harvard and MIT this morning filed suit to prevent the federal government from enforcing a policy announced on July 6 that would prohibit international students from studying in the United States if their institutions offer only online instruction as part of their safety precautions in response to the COVID-19 pandemic. Earlier federal guidance, promulgated in March, relaxed existing caps on remote learning so international students could retain their visa status and pursue their coursework. The July 6 order mandates that students attending schools operating entirely online may no longer take a full online course load and remain in the country (and others who are outside the United States would not be able to enter the country to enroll in such programs). Harvard’s fall reopening plans—unveiled for the College July 6 and earlier for most of the graduate and professional schools—envision online learning in the fall semester, to ensure the health and safety of students, faculty, and staff, while maintaining equitable access to instruction for all students, including those precluded from returning to campus. About 5,000 international students across the University could be affected by the new directive.
The text of the lawsuit appears here. Harvard’s background information on the Student and Exchange Visitor Program appears here. It notes that:
On March 13, 2020, the same day that President Trump declared a national emergency, 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 pursuits at a time when courses were moving remote as a result of the COVID-19 pandemic. On July 6, 2020, even though the government has not ended its declaration of a national state of emergency, ICE rescinded the March 13 guidance, stating that students attending entirely online programs may not remain in or be allowed to enter the country. On July 8, 2020, Harvard and MIT filed pleadings in the U.S. District Court in Boston seeking a temporary restraining order prohibiting enforcement of the July 6 directive.
By all appearances, ICE’s decision reflects an effort by the federal government to force universities to reopen in-person classes, which would require housing students in densely packed residential halls, notwithstanding the universities’ judgment that it is neither safe nor educationally advisable to do so, and to force such a reopening when neither the students nor the universities have sufficient time to react to or address the additional risks to the health and safety of their communities. The effect—and perhaps even the goal—is to create as much chaos for universities and international students as possible.
President Lawrence S. Bacow objected strongly to the new policy on July 6, saying:
In recent weeks, like many of our colleague institutions across the country, Harvard has announced plans for the fall semester. Our schools have taken into account the most up-to-date public health and safety guidance, the specific educational requirements of their programs, and their unique student populations. The wellbeing of the University community has been our highest priority in making these difficult decisions.
We are deeply concerned that the guidance issued today by US Immigration and Customs Enforcement imposes a blunt, one-size-fits-all approach to a complex problem, giving international students, particularly those in online programs, few options beyond leaving the country or transferring schools. This guidance undermines the thoughtful approach taken on behalf of students by so many institutions, including Harvard, to plan for continuing academic programs while balancing the health and safety challenges of the global pandemic.
In announcing MIT’s reopening plans on July 7 (including limited in-person instruction), President L. Rafael Reif inserted a paragraph on the new guidance, observing that “This ruling has potentially serious implications for our international students, both undergraduate and graduate; we are reviewing the details and will be in touch with all affected students as soon as possible.”
Explaining the lawsuit, which seeks a temporary restraining order against the new directive, and a permanent injunction preventing enforcement, Bacow said, “The order came down without notice—its cruelty surpassed only by its recklessness. It appears that it was designed purposefully to place pressure on colleges and universities to open their on-campus classrooms for in-person instruction this fall, without regard to concerns for the health and safety of students, instructors, and others. This comes at a time when the United States has been setting daily records for the number of new infections, with more than 300,000 new cases reported since July 1.” He said Harvard is determined to “pursue this case vigorously so that our international students—and international students at institutions across the country—can continue their studies without the threat of deportation.”
International students, he said, are often fulfilling a lifelong dream by studying here, and “These students are our students, and they enrich the learning environment for all. We fervently hope that, before long, the circumstances that necessitate online learning will pass. As a university with a profound commitment to residential education, we hope and intend to resume full in-person instruction as soon as it is safe and responsible to do so. But, until that time comes, we will not stand by to see our international students’ dreams extinguished by a deeply misguided order. We owe it to them to stand up and to fight—and we will.”
The full text of his message to the community appears below.
The suit contends that the July 6 directive was issued without considering the extraordinary circumstances that require online learning, and did not provide the notice and comment required for such rulemaking. As a matter of substance, the suit contends that the July 6 directive was promulgated without any reasonable basis justifying the policy.
The issue has resonated throughout the higher-education community, as reflected in extensive reports in Inside Higher Education, The Wall Street Journal, and The Boston Globe—which this morning covered the huge cohort of international students enrolled at area institutions. On July 7, Mary Sue Coleman, president of the Association of American Universities (representing 65 leading research universities), issued a statement condemning the new policy as “cruel and misguided”:
This ICE policy is immensely misguided and deeply cruel to the tens of thousands of international students who come to the United States every year. It is also likely to do further damage to our nation’s universities, which are already struggling with unprecedented uncertainty, massive logistical complications, and significant financial losses due to the ongoing COVID-19 pandemic. In particular, the impact on international graduate students and undergraduate students already in the United States will be devastating, causing massive disruptions in their learning and research. This policy change would also have negative economic impacts, because international students spend millions of dollars in our communities every year.
AAU is working to quantify the impact of this new guidance, which forces sudden, difficult decisions on international students and universities trying to look out for the safety of their students, faculty, and staff. We strongly urge the administration to rescind this guidance and provide temporary flexibility to permit international students to participate in the range of in-person, online, and hybrid instruction that institutions are implementing in light of the pandemic and their local conditions.
President Bacow’s Message
Dear Members of the Harvard Community,
On Monday, US Immigration and Customs Enforcement (ICE) announced that international students will not be allowed to stay in the country if they attend institutions, like Harvard, that are holding courses online this fall. Their choices are either to transfer to another institution that provides in-person or hybrid (both in-person and online) instruction—or to depart the country and risk not being able to return. Those students who fail to comply with this guidance may face deportation.
The order came down without notice—its cruelty surpassed only by its recklessness. It appears that it was designed purposefully to place pressure on colleges and universities to open their on-campus classrooms for in-person instruction this fall, without regard to concerns for the health and safety of students, instructors, and others. This comes at a time when the United States has been setting daily records for the number of new infections, with more than 300,000 new cases reported since July 1. Moreover, if an institution pursues in-person or hybrid instruction this fall and a serious outbreak of COVID-19 occurs, the institution would face strong pressure not to switch to online instruction, as Harvard and others necessarily did this past March, because to do so would immediately place its international students in jeopardy.
In making plans for the fall, Harvard, like many other institutions, has sought to balance addressing concerns for public health with preserving our academic mission of teaching and scholarship, and we have undertaken careful planning to address the unique circumstances of our community and to enable students to make educational progress safely. We have done so recognizing that the nation is in the grip of a pandemic that poses risks to the health of millions and that threatens to overwhelm our capacity to manage it. We believe that the ICE order is bad public policy, and we believe that it is illegal.
Within the last hour, we filed pleadings together with MIT in the US District Court in Boston seeking a temporary restraining order prohibiting enforcement of the order. We will pursue this case vigorously so that our international students—and international students at institutions across the country—can continue their studies without the threat of deportation.
For many of our international students, studying in the United States and studying at Harvard is the fulfillment of a lifelong dream. These students are our students, and they enrich the learning environment for all. We fervently hope that, before long, the circumstances that necessitate online learning will pass. As a university with a profound commitment to residential education, we hope and intend to resume full in-person instruction as soon as it is safe and responsible to do so. But, until that time comes, we will not stand by to see our international students’ dreams extinguished by a deeply misguided order. We owe it to them to stand up and to fight—and we will.