Law360 (July 8, 2020, 9:32 AM EDT) -- Harvard University and the Massachusetts Institute of Technology urged a federal court on Wednesday to halt the Trump administration's new requirement that international students whose universities go fully online during the pandemic leave the U.S. or risk deportation.
In the first lawsuit challenging the policy, which was announced Monday, the universities claimed that U.S. Immigration and Customs Enforcement issued the policy arbitrarily, without offering "any reasoned basis for the sudden and dramatic change of position."
The policy also fails to consider the risks to foreign students in the U.S., who must, under the rule, arrange last-minute international travel during a pandemic or transfer schools weeks before the semester's start, and well after transfer deadlines, the suit says.
"ICE's action leaves hundreds of thousands of international students with no educational options within the United States," the lawsuit says.
The schools also accused the Trump administration of using the rule to force universities to reopen and hold in-person classes.
The policy puts universities 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 suit says.
Hours before the Monday announcement, Harvard had announced it would limit on-campus living to 40% and hold all courses online, while MIT announced a hybrid model. The schools claimed that increasing the number of in-person courses to accommodate the restrictions would put its faculty members at increased risk of contracting the virus.
The median age of a member of Harvard's Faculty of Arts and Sciences is over 60, according to the suit.
In a statement Wednesday, Harvard President Lawrence Bacow promised to "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," he said.
The lawsuit leans primarily on ICE's alleged failure to consider the "reliance interests" of universities and students, who had, up until the Monday announcement, been guided by ICE's earlier March policy that allowed international students to take online courses in light of the national emergency caused by the pandemic.
Typically, international students on F-1 visas are not permitted to take more than one course online.
The Trump administration's failure to address individuals' reliance interests was also at the heart of the U.S. Supreme Court's decision last month to stop the Trump administration from rescinding the Deferred Action for Childhood Arrivals programs, which gives deportation relief and work permits to young unauthorized immigrants.
The Monday guidance, which drew fast blowback from the higher education community, "will harm continuing F-1 students immensely," the universities argued in the Wednesday lawsuit, including by forcing some to break apartment leases and separating others from family in the U.S.
Many students will struggle to complete their online courses from abroad, the universities said. Some students live in different time zones, countries without consistent WiFi and electricity, or in countries like Syria undergoing civil war, the suit says.
The universities additionally took issue with the guidance's mandate that foreign students outside of the U.S. whose universities are holding some in-person courses will be forced to abandon their studies if they are unable to enter the U.S. due to the pause on visa processing abroad and the administration's travel restrictions.
This disruption in their visa status could disqualify them from getting a post-grad work permit to stay in the U.S. for up to three years after graduating, the suit says.
A spokesperson for ICE declined to comment on pending litigation.
The universities are represented by Felicia H. Ellsworth, William F. Lee, Mark C. Fleming, Seth P. Waxman, Paul R.Q. Wolfson and Ari Holtzblatt of WilmerHale.
Counsel information for the federal government was not yet available.
The case is President and Fellows of Harvard College et al. v. United States Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts.
--Editing by Alyssa Miller.
Update: This story has been updated with more details from the complaint and with comments from Harvard.
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