By Hailey Konnath

Law360 (July 10, 2020, 9:50 PM EDT) -- A slew of universities and colleges urged a Massachusetts federal court Friday to block a Trump administration policy barring foreign students from the U.S. if institutions offer online-only instruction during the coronavirus pandemic, calling the directive "abrupt," "arbitrary" and "devastating" for schools and students.

The Presidents' Alliance on Higher Education and Immigration, on behalf of 180 member institutions from around the country, lodged an amicus brief in support of Harvard University and the Massachusetts Institute of Technology, which are challenging the policy in a suit filed this week. The directive "leaves hundreds of thousands of international students with no educational options within the United States," Harvard and MIT said in their July 8 complaint.

The amici represent a wide array of small and large schools across the country, and include major state schools and systems, like Arizona State University, the Colorado State University System and California State University, as well as private institutions, such as Loyola University Chicago, Reed College and St. Lawrence University.

"Though diverse in faith, academic mission, geography and size, these institutions are deeply concerned with and impacted by [U.S. Immigration and Customs Enforcement's] July 6 directive," they said.

The schools said in their brief that in planning for the fall semester, they and their students relied heavily on ICE's March guidance saying the government would be flexible with in-person education requirements as long as the pandemic was ongoing. Consequently, the July 6 directive "blindsided the whole of higher education," they said.

"ICE cannot, consistent with the Administrative Procedures Act, simply cast aside its prior judgment after it engendered such substantial reliance by institutions and their students," they said.

International students make immense contributions to campuses nationwide, the schools said, noting that they foster diversity, enhance schools' intellectual competitiveness, contribute to athletic and other extracurricular programs, and benefit schools and neighboring communities economically.

"The July 6 directive would impose dire consequences — academic, social and economic, among others — on higher education institutions across the country," the schools said. "It must be swiftly enjoined."

Friday's amicus brief could be the first of several. Bill Lee, an attorney for Harvard, said during a Friday hearing that he was anticipating as many as nine briefs from colleges and universities around the country.

Johns Hopkins University filed its own suit Friday in D.C. federal court, saying the policy "contravenes our country's most vaunted values and interests."

Under the directive, international students wouldn't receive visas or be allowed to enter the U.S. if they are enrolled in degree programs that have moved entirely online. Students already in the U.S. must leave the country or transfer to a school with in-person instruction, ICE's Student and Exchange Visitor Program said.

Harvard and MIT hit the U.S. Department of Homeland Security with the first suit over the policy, arguing it was issued arbitrarily and without offering "any reasoned basis for the sudden and dramatic change of position." 

Also on Friday, U.S. District Judge Allison D. Burroughs set an aggressive briefing schedule for the case, saying she would make her decision July 15.

Lee told the judge during the status conference that the breakneck pace of the suit is needed because the upcoming academic year is fast approaching, and students and institutions need to make decisions on travel and courses. The government must file its response to Harvard's and MIT's complaint by Monday afternoon, and Judge Burroughs will hear arguments from MIT and Harvard the next day. July 15 is the deadline for colleges and universities to communicate fall semester plans to ICE.

As the country grapples with COVID-19, each school is facing unique challenges depending on a number of factors, including size, location and student body, but every single one of the institutions made plans for the fall with ICE's March guidance in mind, the schools said in Friday's brief. And months later, the public health emergency is as pressing as ever, they said.

Paul Hughes, counsel for the amici schools, on Friday called the new student visa policy "destructive." The March guidance was supposed to remain in place "for the duration of the emergency," he said in a statement.

"One need only look at any headline to appreciate that the 'emergency' has not ended," Hughes said, adding that the government's about-face "is plainly unlawful, and we urge the court to swiftly enjoin it."

The University of California, Princeton, Georgetown and Yale are among the schools that have vocally opposed the government's new policy regarding international students, although those schools weren't part of Friday's brief.

Any additional amicus briefs must be filed Monday, and they're limited to 15 pages each, Judge Burroughs said.

In Johns Hopkins' suit filed Friday, the school said ICE was forcing the school to choose between compromising "on the one hand, its academic mission and unique contributions to the global fight against COVID-19, or, on the other hand, protecting the health and safety of its students, faculty, and staff." The university is also urging the D.C. federal court to set aside the policy.

An ICE representative on Friday said the agency doesn't comment on pending litigation.

Harvard and MIT are represented by Ari Holtzblatt, Paul R.Q. Wolfson, Seth P. Waxman, Felicia H. Ellsworth, Mark C. Fleming and William F. Lee of Wilmer Cutler Pickering Hale and Dorr LLP.

The government is represented by Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts

The cases are President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts, and Johns Hopkins University v. U.S. Department of Homeland Security et al., case number 1:20-cv-01873, in the U.S. District Court for the District of Columbia.

--Additional reporting by Suzanne Monyak, Alyssa Aquino and Chris Villani. Editing by Alanna Weissman.

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