An ‘Untenable Situation’

Harvard University and the Massachusetts Institute of Technology sued in federal court Wednesday to try to block a new Trump administration policy that would prohibit international students in the U.S. from enrolling exclusively in online courses, even if the colleges they attend will only offer online courses in the fall due to the continuing public health threat posed by the coronavirus pandemic.

Harvard and MIT argue in their lawsuit that the policy change announced Monday by U.S. Immigration and Customs Enforcement threw virtually all of U.S. higher education “into chaos.” They say the decision, which would make international students enrolled exclusively in online courses subject to deportation, puts colleges in “the untenable situation of either moving forward with their carefully calibrated, thoughtful, and difficult decisions to proceed with their curricula fully or largely online in the fall of 2020 … or to attempt, with just weeks before classes resume, to provide in-person education despite the grave risk to public health and safety that such a change would entail.”

The University of California announced Wednesday that it too would file suit against the federal government "for violating the rights of the University and its students." The lawsuit will seek to bar ICE from enforcing the order that UC President Janet Napolitano called “mean-spirited, arbitrary and damaging to America,” the announcement from Napolitano's office said.

Harvard and MIT have both opted to offer most of their fall courses online for public health reasons.

“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,” Harvard and MIT wrote in the complaint filed in the U.S. District Court for the District of Massachusetts.

“The effect -- and perhaps even the goal -- is to create as much chaos for universities and international students as possible,” they wrote.

A spokeswoman for ICE declined to comment on the suit or to make an official available for an interview about the planned rule. She said the agency does not comment on pending litigation.

Ken Cuccinelli, the acting deputy secretary for the Department of Homeland Security, told CNN that international students only taking online courses have no reason to be in the U.S. He argued that the planned regulation provides colleges "massive flexibility" to implement hybrid models of online and in-person education. College administrators across the country largely disagree with that assessment.

The ICE announcement has caused widespread distress and confusion for students and for colleges. Administrators argue that it takes away their flexibility to responsibly adapt to public health conditions. The president of the American Council on Education, Ted Mitchell, called ICE's move “horrifying.”

Federal regulations typically prohibit international students from enrolling in more than one online course per term. After the pandemic forced colleges to move their courses online in March, the Student and Exchange Visitor Program, which is overseen by ICE, waived that requirement to allow international students to remain in the U.S. while participating exclusively in online classes. This was a temporary accommodation the agency said would remain “in effect for the duration of the emergency.”

ICE abruptly modified its position Monday, saying that students in the U.S. enrolled in online-only programs this fall “must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status or potentially face immigration consequences including, but not limited to, the initiation of removal proceedings.”

International students attending colleges that are offering a hybrid of in-person and online classes can take more than the one online course that would be allowable in non-pandemic times. But the colleges must certify to ICE through an individualized government form for each student known as the I-20 form “that the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.”

The language on hybrid programming has caused confusion about what would be the minimum in-person component that might be acceptable to ICE -- and has prompted many professors to take to Twitter to offer to teach in-person independent study courses to international students. (One professor at Georgia State University offered to teach an in-person independent study for international students focused on “violations of the Administrative Procedures Act under the Trump administration.”)

The lawsuit filed by Harvard and MIT claims Administrative Procedure Act violations. Specifically, Harvard and MIT argue that universities and students had made planning decisions based on ICE’s previous statement that the waiver of online learning restrictions would remain “in effect for the duration of the emergency.” The lawsuit notes that President Trump's emergency declaration concerning the coronavirus has not been rescinded and that COVID-19 cases continue to rise nationally.

“Universities and students have been planning the 2020-2021 academic year for months in reliance on ICE’s recognition that the COVID-19 pandemic compelled allowing international students to remain in the country even if their studies had been moved entirely online,” the lawsuit states. “ICE’s rescission of that recognition failed to consider numerous weighty interests, and is itself arbitrary and capricious and an abuse of discretion. Further, ICE’s action is procedurally defective under the Administrative Procedure Act. It should be set aside, and the government required to abide by the guidance it put forward in March and on which universities and students relied in planning a fall semester during an ongoing pandemic.”

Even while the lawsuit is pending, colleges are having to move extremely quickly to implement ICE’s directive -- even before the Trump administration issues its promised temporary final rule on this subject.

Colleges only have until July 15 -- nine days after the policy change was announced -- to report to ICE whether they will be entirely online this fall. Colleges operating in hybrid models have until Aug. 4 to reissue new I-20 forms for all of their international students. Some institutions enroll thousands of international students, necessitating the issuance of thousands of new forms.

Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, a group of college presidents focused on immigration policy, said the change appears to have been done in a “punitive fashion.”

“We’re talking about unrealistic timelines, timelines that are not responsive to the course of the pandemic,” she said. “All these decisions are being made by reviewing evidence-based trends.”

William Brustein, special assistant to the president for global affairs at West Virginia University, said another challenge is that colleges are hard-pressed to advise students due to the vagueness of the guidance on hybrid learning.

“They will be allowed to take more than one class, or three credit hours, online, but how many?” he asked. “Let’s say they’re taking 15 hours. Can they take 12 hours, can they take nine hours online? We don’t know. We cannot advise on this point until we understand or we receive clarification.”

University officials also have questions about what will happen if they start the fall in a hybrid mode but shift to an online-only format midsemester because of the course of the pandemic. As it is, many colleges are planning to shift to remote-only instruction after Thanksgiving break.

“There are a lot of ambiguities in the new broadcast guidance and students are trying to figure out their options,” said Stephen Yale-Loehr, a professor of immigration practice at Cornell University.

"It's particularly confusing because many colleges have not decided yet what kinds of classes they’ll be offering this fall semester -- and even if colleges have made decisions, they may need to change them because of the ever-evolving nature of the COVID-19 pandemic," he said. "A university may start with hybrid classes, but then feel it needs to change to all online classes partway through the semester. This broadcast guidance does not answer those kinds of nitty-gritty details."

Shoba Sivaprasad Wadhia, director of the Center for Immigrants’ Rights Clinic at Pennsylvania State University, argues that a student would still be considered to be taking a hybrid course load if their university shifted to all-remote operations midsemester because the student's classes prior to that point were held in person. She also believes taking at least one in-person class or at least one class with a mixed online/in-person modality this fall would satisfy the new requirement.

Wadhia said she has fielded more than 100 inquiries from students since Monday.

"I’ve been getting a lot of questions from students who are stuck in the United States, who can’t leave because of border restrictions in their home countries," she said. She also said she's hearing from students who are fearful of returning to their home countries and have possible asylum claims.

Some universities moved quickly to reassure international students that they would work to make in-person class options available so students can maintain lawful immigration status. The University of Arizona sent a message to international students on Monday that said, "Regardless of whether the broader university is mostly online this fall, we are working to provide safe on-campus, in person courses for international students that will comply with Student Exchange and Visitor Information System requirements, so that you may remain in country."

The University of Southern California -- which announced last week that it was reversing course from plans to invite all students back to campus in favor of holding most undergraduate classes online -- sent a universitywide message to express concern about the ICE action and to reassure international students.

"Given the broad range of courses being offered, both in person and online, we are optimistic we will be able to support our international students to study in person safely if they wish, but it may take a few days," the message from USC administrators said.

But even if accommodations are workable, the policy change raises equity issues for international students, who will have no choice between participating in at least some in-person coursework or departing the country -- an act that would bear its own health risks, on top of financial and possible personal and professional costs. A survey conducted by the Institute of International Education last spring found that 92 percent of current international students stayed in the U.S. after their campuses largely closed due to the pandemic.

New York University president Andrew Hamilton wrote in a statement that "requiring international students to maintain in person instruction or leave the country, irrespective of their own health issues or even a government mandated shutdown of New York City, is just plain wrong and needlessly rigid. If there were a moment for flexibility in delivering education, this would be it."

Cheryl Matherly, vice president and vice provost of international affairs at Lehigh University in Pennsylvania, said international students don't have the same choices as domestic students.

"If you have a student who has very real health concerns about not wanting to be doing in-person instruction, they only have one other choice, which is to return home, and face that travel risk, or face the risk of not being able to return [to the U.S.] when they are able to begin in-person instruction," she said. "It’s isn’t a very simple answer to just say, ‘well, if we’re not offering in-person you have no business to be here’ -- which is essentially what the message is."

Cuccinelli, the acting deputy homeland security secretary, confirmed that this is indeed the message. He said in his interview with CNN that if a university doesn’t reopen in-person classes this semester, “there isn’t a reason for a person holding a student visa to be present in the country. They should go home, and they can return when the school opens.”

The new rule "provides massive flexibility, gives the opportunity to do anything short of 100 percent online classes," Cuccinelli said.

He added that the rule will "encourage schools to reopen, recognizing some of them are moving their start dates up, some of them are going to hybrid models, some online, some in person. We’re trying to accommodate as many of those as we can while maintaining the protections for fraud and so forth that are necessary in any sort of international visa program."