Over the course of one week, ICE and the US higher education system have been engaged in a battle over the livelihoods of the United States’ international students. Ever since ICE’s July 6th announcement about their new policy surrounding international students, the situation has been quickly expanding and evolving. Given the resolution seemingly reached on July 14th, it is important to examine the various moving parts of this situation and how the resolution came to be.
ICE announced its new policy dictating that students attending online-only classes are not allowed to remain in the United States. In addition to putting many international students at risk for deportation, this decision also left many international students scrambling alongside their institutions to find alternatives and workarounds to the policy.
Harvard and MIT filed a joint lawsuit against ICE asking for a temporary restraining order and permanent injunction against the policy. In the lawsuit, the schools argued that the Trump administration’s action violates the Administrative Procedure Act (an act that governs the rule-making process of federal agencies) by being “arbitrary and capricious”.
They also claimed that the ICE decision was a political move calculated to force universities’ hands about reopening campuses for in-person instruction despite the current pandemic.
An organization called ‘The Presidents’ Alliance on Higher Education and Immigration filed an amicus brief cosigned by more than 180 colleges.
An amicus brief is a set of legal documents filed in appeals court cases by non-litigants with a strong interest in the subject matter. These briefs are intended to provide the court with relevant, additional information or arguments that they might wish to consider. So, while none of the colleges below were suing ICE in the way Harvard and MIT were, the amicus brief was a way for these colleges to show the court that they also denounced ICE’s new policy.
In this amicus brief, the colleges argued that ICE “blindsided the whole of higher education” and that the sudden policy change “guts the enormous reliance interests of higher education institutions and their students—all of whom planned for the fall 2020 semester based on ICE’s earlier confirmation that it’s March 2020 position would remain so long as the ‘emergency’ continued.”
The March 2020 position to which the amicus brief refers is one which ICE decided to allow online-only international students to remain in the United States because of the abrupt effect of the pandemic on in-person instruction nationwide. The colleges further argued that for ICE to suddenly reverse their March 2020 decision without justification or a major improvement in the pandemic should not be legally allowed, citing the same “arbitrary and capricious” standard used by Harvard and MIT.
59 more colleges (with a combined total of 213,000 international students enrolled) filed an amicus brief backing Harvard and MIT’s lawsuit.
In this amicus brief, the colleges argue “a fundamental principle of administrative law is that the government must provide a reasoned explanation for its actions and consider all important aspects of a problem before imposing burdens on regulated parties…the July 6 Directive fails this basic requirement.”
By issuing this directive while many colleges are in the midst of finalizing their plans or have already announced, ICE failed to consider and account for the suddenness with which students and institutions would have to scramble to shift plans.
Furthermore, the directive itself came with little explanation or justification of why ICE had decided to suddenly change plans. The colleges also argue in the brief that “the emergency persists, yet the government’s policy has suddenly and drastically changed, throwing preparations into disarray and causing significant harm and turmoil.”
Though the amicus briefs (and more broadly the lawsuit) are about the colleges and universities attempting to take a stand for themselves against ICE, the second latter half of the argument is truly most important. While the idea of these colleges having to readjust their plans at the last minute is unfair, it is the significant harm and turmoil brought upon international students by the directive that makes it most problematic.
The Trump administration agreed to rescind the new directive following a brief session in the U.S District Court for the District of Massachusetts. Universities were expected to make their arguments against the new rule, but instead the judge announced that the government had agreed to rescind the policy directive and to rescind its implementation.
According to the court docket, “the Court was informed by the parties that they have come to a resolution to the combined temporary restraining order/preliminary injunction motions. The Government has agreed to rescind the July 6, 2020, Policy Directive and the July 7, 2020 FAQ and has also agreed to rescind their implementation.”
This whirlwind of a situation highlights two important facets of the political state of the country: the collective power of major institutions and the ever-present threat to marginalized communities. This series of events highlights just how much power major institutions and the people who run them have in controlling political situations.
Arguably, it was not the cries of outrage from international students that caused the government to reverse its position, but rather the political pressure threatened and applied by some of the most prolific colleges and businesses in the country. Thus, this situation shows the ability that those in power have to force the change for which marginalized communities are calling.
On the other side, it’s important to note how with one newsletter announcement, ICE managed to throw the lives of over a million students into flux without explanation or regard. The fact that the lives of so many people could be threatened so suddenly highlights that many international students are under the constant threat of being exposed to harm and turmoil simply based on the whims of the US government.
This is something that should be of concern not only to the institutions that house these students but to the larger US population as well because, in addition to being students, these people are integral parts of our lives and human beings in their own right. This humanity alone should be enough to disqualify the international student community from being used as a political pawn or anything of that nature.