In a decision Thursday night, three judges on the US Court of Appeals for the Ninth Circuit refused a request from the Trump administration to reinstate a travel ban that had temporarily barred visitors from seven nations, and all refugees, from entering the United States.
[This is an article from The Chronicle of Higher Education, America’s leading higher education publication. It is presented here under an agreement with University World News.]
The decision means that for now at least, President Donald Trump’s executive order – which had stranded students and scholars overseas and forced others on campuses in the United States to cancel research projects and other personal and professional travel out of the country for fear of not being allowed to return – still cannot be enforced.
As with the ruling last Friday by a lower court judge, which first blocked the executive order nationwide, the travel ban’s impact on public colleges and universities played a key role in the appellate panel’s unanimous decision.
The states of Washington and Minnesota had initially challenged the ban in part on grounds that it was harmful to their colleges and universities, and that factor loomed large in the temporary restraining order issued last week by Judge James L Robart of the US District Court in Seattle.
The Trump administration asked the Ninth Circuit appellate court to undo Judge Robart's order, claiming that the states didn’t have legal standing to challenge the travel ban and that the courts didn’t have the authority to block an executive order.
But in their ruling Thursday, the appellate judges flatly rejected the government’s claim that the courts had no authority to review an executive order on immigration based on national security, saying that such a claim "runs contrary to the fundamental structures of our constitutional democracy".
The judges also affirmed that the states had legal standing to bring the case. And that standing, they said, arose specifically from the way the ban’s impact on students and researchers had harmed the states’ public universities.
Invoking court precedents, the judges noted that universities can assert the rights of their students. "The interests of the states’ universities here are aligned with the students. The students’ educational success is ‘inextricably bound up’ in the universities’ capacity to teach them," the ruling says. "And the universities’ reputations depend on the success of their professors’ research."
As operators of state universities, the order continues, the states "may also assert the rights of their students and faculty members."
Minutes after the ruling was released, President Trump denounced it from his Twitter feed. "See you in court," he tweeted, in all caps. "The security of our nation is at stake."
But Stewart Jay, an emeritus professor of law at the University of Washington, said the judges were spot on. "It was completely correct," he said of the ruling, "mainly because it’s extremely hard" to appeal a temporary restraining order successfully.
To establish standing, Jay noted, "you just have to show that there’s a concrete harm," and the states were able to do that by showing the travel ban’s impact on their colleges.
The University of Washington and Washington State University each submitted declarations to the lower court that described situations where students had been unable to return to their campuses and visiting scholars had been barred from entry, and one page of the appellate judges’ 29-page ruling highlights those circumstances.
"Both schools have a mission of ‘global engagement’ and rely on such visiting students, scholars and faculty to advance their educational goals," the ruling says. "Students and faculty at Minnesota’s public universities were similarly restricted from travelling for academic and personal reasons."
The decision enumerated the connection between the universities and the harm to the states in what the court said were "at most two logical steps". One, that the order "prevents nationals of seven countries from entering Washington and Minnesota", and two, that "as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave".
The ruling, however, does not deal with the merits of the legal challenge to the travel ban. It deals only with the Trump administration’s emergency petition to reinstate the ban while its appeal of the district court’s ruling continues.
It was unclear late Thursday whether the Department of Justice would try to appeal the appellate panel’s ruling, either to the full Ninth Circuit or to the Supreme Court, or would focus its efforts back at the district court, where the legality of the ban will be argued.
Stephen Yale-Loehr, a professor of law at Cornell University who specialises in immigration law, said he expects that the higher courts would not consider any further appeals at this stage and that "the government will need to go back to the trial court to try to present evidence justifying the temporary travel and refugee ban". After that, he said, "the Supreme Court may have to decide how to balance the general broad immigration powers of presidents against the adverse impacts of the executive order on US citizens and companies."
‘The damage is done’
Administrators at universities around the country expressed relief at the news of Thursday’s ruling. They remained cautious, however, about the uncertain future of Trump’s executive order, and about the order’s long-term ramifications, whether or not it is permanently overturned.
William I Brustein, vice-president for global strategies and international affairs at West Virginia University, said he was "delighted" that the ban was not reinstated. "But the heightened anxiety is still there," he said.
He said his office will continue to advise students from the seven affected countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – not to travel outside the United States. The ban affected roughly 17,000 students from those seven countries who are on American campuses. Among them are 127 students and several faculty members at Brustein’s institution.
However, if parents from those countries were planning on travelling to the United States this spring – perhaps to attend their child’s graduation – now might be a good time for them to come, he said.
"We’re confident in the long run that this ban will not be sustained," Brustein said. But even having such restrictions in place for a few days, combined with the chaotic roll-out of the order, could have significant ramifications for international student recruitment this fall and beyond, he said.
Given the rise of countries like China and India as players in the global higher education market, he said, any knocks against American institutions will factor into prospective students’ cost-benefit analysis. "If we are adding costs to that analysis, such as travel bans and a less-than-friendly environment for students, we’re going to accelerate that downward slope," he said.
Portland State University, which is on the quarter system, is expecting a group of students from the seven named countries to arrive in about a month for the spring quarter, said Margaret Everett, the vice provost for international affairs and dean of graduate studies there. At least two of those students already have their visas in hand and one of them is the spouse of a current student. Administrators, she said, are "excited to share with them that they will be able to travel".
These are "students who have worked incredibly hard and made a lot of sacrifices to be here", Everett said. "We will continue to do everything we can to make them feel valued and welcomed."
Kenneth Reade, the director of international student and scholars services at the University of Massachusetts at Amherst, was shovelling snow off his driveway when the court decision was announced. It was a "nice thing to come back into the warm to", he said in an interview.
There’s been "a lot of chatter tonight," he said, among himself and other directors within the University of Massachusetts system. "Very positive chatter, I might add."
Like others, he said his office will continue to be cautious. At the same time, students who have immediate travel plans or want dependants to join them in the country, he said, will very likely be encouraged to take advantage of the "ban on the ban".
A few hours after the court’s decision was released, Reade was already drafting a statement to send out to groups on UMass’s campus. Speaking Thursday night, he said he hoped his message would be reassuring and that the court’s decision would be "a bit of a tonic" for students directly affected by the travel ban.
"In many ways, I feel there’s not going to be a lot of change to the tone or the types of questions that we will continue to receive," Reade said. He’s heard of a Jamaican student worried to travel to Jamaica, a country not included in President Trump’s order, and of parents telling children pursuing doctoral degrees to give up years of study and return to their home countries.
"I still very strongly feel that the damage is done," he said. While the court’s refusal to reinstate the travel ban helps students with consular appointments or other pressing needs, Reade said, it’s "completely shaken the confidence of international students and scholars in this country to have a long-term, steady, stable immigration path".
Goldie Blumenstyk writes about the intersection of business and higher education. Check out www.goldieblumenstyk.com for information on her new book about the higher education crisis; follow her on Twitter @GoldieStandard; or email her at firstname.lastname@example.org. Shannon Najmabadi writes about teaching, learning, the curriculum and educational quality. Sarah Brown writes about a range of higher education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at email@example.com.
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