International Students v. Immigration and Customs Enforcement: Harvard and MIT lead the charge

Opinion Analysis by Mounia El Khawand, Staff Writer

July 31st, 2020

On July 6, 2020, international students attending colleges and universities in the United States under an F-1 or M-1 visa spent their day staring in shock at their screens. 

Cellphones would not stop buzzing from the surge of frantic group chats notifications or Twitter updates, and academic advisors and administrative employees saw their inbox flooded with emails from panicked students, seeking to make sense of the situation. 

On that day, the Immigration and Customs Enforcement (ICE) issued a new policy, stipulating that international students “may not take a full online course load and remain in the United States.” This policy directly contradicts ICE’s previous directive, taken on March 13, in which they suspended the existing limits on online schooling until the end of the sanitary crisis triggered by the novel coronavirus pandemic.

The regulation was quickly met with severe backlash and criticism. Aside from putting international students in harm’s way (impossibility to return home due to lack of funds, closed borders, politically unstable environments, exposure to the virus) and jeopardizing their entire education (impossibility to follow online courses due to poor internet connection or time zones, forced forfeiting of research projects and fellowships), this policy would also cause losses of millions of dollars, given that the hundreds of thousands of international students attending US universities tend to pay the highest tuitions. It would further severely undermine the US’ ability to attract foreign scholars and thinkers, who have critically contributed to its position as a world leader in innovation and education.

The ICE rule was also admonished by students and university officials alike for being a strategic move to further two of the Trump administration’s primordial agenda items: limiting immigration and reopening institutions in the coming semester, despite the escalating number of COVID-19 cases. Indeed, on the same day as the ICE announcement, the President vocally and publically expressed his opinion on the matter viaTwitter, in a straightforward and all-caps Tweet: “SCHOOLS MUST OPEN IN THE FALL!!!” 

US universities find themselves stuck between a rock and a hard place. Policy counsel at the American Immigration Council, Aaron Reichlin-Melnick, says that establishments of higher education are forced to choose “between what’s best for public health, and what’s best for their international students.”

But they chose a third option. 

Only two days later, two neighboring universities in Massachusetts would be the first to take action against this ICE-cold policy. 

On July 8, MIT President L. Rafael Reif reiterated the international students’ outcry in an email addressed to the entire Institute’s community, saying “our international students now have many questions – about their visas, their health, their families and their ability to continue working toward an MIT degree. Unspoken, but unmistakable, is one more question: Am I welcome?” 

In the same letter, he announced that Harvard and MIT had joined forces, and filed a lawsuit against ICE and the Department of Homeland Security, in order to repel the new guidance and have it declared as unlawful.

The case is President and Fellows of Harvard College v. U.S. Department of Homeland Security, 20-cv-11283, U.S. District Court, District of Massachusetts.

In their filing, the two prestigious institutions cite the heartbreaking stories of many students who would be forced to give up on their American Dream. From LGBTQ+ having to face discrimination and social insecurity in their homelands, to students giving up their projects and returning to countries plagued by famine or restricted internet access, to others that do not even have a place to return to, their testimonies can be found in this article of the Harvard Crimson.

The joint lawsuit quickly received support from a number of other universities, including the rest of the Ivy League, Duke, Stanford, as well as tech companies such as Google and Facebook. Major systems, like the University of California, and 17 different States, rounded out by the District of Columbia, have filed lawsuits of their own against the policy, calling it “senseless and cruel.” 

Mark Rosenbaum, a lawyer with Public Counsel, an LA-based legal aid organization, which represents foreign graduate students at three universities in California, says “the president is using foreign students as pawns to keep all schools open, no matter the cost to the health and well-being of these students and their communities.” He labels the decision as “temper-tantrum policymaking.”

In their lawsuit, the Harvard-MIT duo, after calling the ICE rule “arbitrary and capricious,” went on to explain that it would upend the months of work that universities spent devising a strategy for the fall semester with the original March 13 lenience directive in mind, mere weeks before many are scheduled to resume classes. Most importantly, they insisted that the new policy was a direct violation of the Administrative Procedure Act, which regulates rulemaking for federal agencies, since the guideline was issued without justification, did not leave room for the public to comment, and, above all, did not take into consideration the disastrous repercussions on the international student body. 

During the week that followed, students anxiously awaited the hearing scheduled for July 14, 2020, trying to devise endless backup plans, hoping for the best, yet fearing the worst.

On July 14, US Judge Allison D. Burroughs declared that the lawsuit had been rendered moot, since the coalition of schools and the government had reached a settlement, in which the Trump administration chose to rescind the directive, the related FAQ, as well as any implementation of the rule, and return to the “status quo” that had been in place since the beginning of the lockdown. Neither the White House nor ICE chose to release a statement regarding the reversal. Ted Mitchell, the president of the American Council on Education, commented in favor of this outcome, and calling the policy reversal the “sensible and humane thing to do.”

MIT President Rafael Reif was quick to share the good news with the members of his community in a university-wide email, in which he also pledged to defend the students “from any future arbitrary policy.” And, although some can find solace in his comforting words and readiness, others could see it as an omen of harder days to come. Technically, the lawsuit was not dismissed, and, if ICE issues a new rule, Harvard, MIT, and their cohorts might return to court once more.

International students will not forget this rollercoaster of a week any time soon, nor will any prospective applicants to US universities. Many will not scrap the backup plans they had to concoct during those harrowing few days, in fear of the need for them arising again. Although the many questions regarding visas, health, and travel can be put to rest, if only for the time being, there is this one question that lingers, a question that will haunt foreign students for years to come: Am I welcome?