Universities say ban will turn them into ‘super-spreaders’

United States higher education’s latest legal battle with the Trump administration, this time over federal efforts to force its international student population to attend classes in person in the coming semester or leave the country, moves to the courtroom this week.

A whirlwind five days of anxiety, along with the rapid spread of speculation and likely misinformation, around the US Department of Homeland Security’s abrupt shift in policy ended on Friday when a US District Court judge in Massachusetts scheduled a hearing for Tuesday 14 July.

The hearing will address a lawsuit by Harvard University and the Massachusetts Institute of Technology (MIT) that argues that the administration’s directive needlessly disrupts the lives of hundreds of thousands of international college students and dangerously inflames an already-raging public health crisis.

The lawsuit responds to regulations released on 6 July by the US Immigration and Customs Enforcement (ICE) that lift a temporary waiver, introduced in March as the COVID-19 pandemic escalated, from a longstanding rule requiring international students to attend primarily face-to-face courses.

Plans for another lawsuit soon followed from the University of California system, which in the spring semester announced it would provide mostly online instruction. Yet another lawsuit was filed on 9 July by the State of California with support from the California State University system and California’s community colleges. Many other universities are filing legal briefs in support of the lawsuits.

University of California President Janet Napolitano called the Trump administration policy “mean-spirited, arbitrary and damaging to America”.

The policy “forces schools to choose between educating all of their students or letting universities turn into ‘super-spreaders’ of COVID-19”, says a statement released by California’s attorney general.

“The effect – and perhaps even the goal – [of the policy shift] is to create as much chaos for universities and international students as possible,” Harvard and MIT lawyers said in their legal brief.

Scramble for clarification

As the legal opposition gathered momentum over the course of the week, universities also scrambled to clarify the directive’s language.

Most universities were already developing plans to bring students back to campus in the autumn, but the language of the federal regulation lacked detail, and sparked questions across the country from students, parents, faculty and administrators.

A statement on the University of California, Berkeley webpage urged its international students to “please hold off from drawing too many conclusions or raising too many questions” until it can fill in gaps.

During a webinar at George Mason University, academic advisors implored students to “not take immigration advice from your friends”.

As of this weekend, just 9% of universities were planning to offer only online courses, according to data collected from 1,125 institutions by the Chronicle of Higher Education. Nearly six in 10 universities (58%) were planning for in-person instruction in the autumn and more than a quarter (27%) were proposing a hybrid model that combines face-to-face with online instruction. The remainder were still considering their options.

The federal guidelines allow for universities to adopt a hybrid model, but it is typically up to academic departments, not university administrators, to determine the mode of instruction for each course. Whether a particular student meets federal requirements hinges on which precise courses they select and how those courses are delivered.

Moreover, the directive indicated that students could lose their student visa status if a university shifts from in-person instruction to virtual classes mid-semester. Many universities are considering that possibility in anticipation of a potential surge in coronavirus cases later this year.

“No one knows what August, September, October and November will look like,” said Association of Public and Land-grant Universities President Peter McPherson.

Legal strategy

Lawsuits are adopting a legal strategy similar to one adopted in 2017 in response to a Trump administration decision to rescind the Deferred Action for Childhood Arrivals (DACA) programme, an Obama administration policy that enables children of undocumented immigrants to pursue a US college education. Last month, the US Supreme Court ruled that the government did not adequately explain its reversal of policy and therefore could not immediately end DACA.

The federal rule change reinstates a longstanding policy requiring international students to participate in face-to-face instruction. ICE waived the requirement in March as the coronavirus escalated and said it would remain “in effect for the duration of the emergency”.

Universities argue that pandemic conditions remain extreme.

But Ken Cuccinelli, the acting deputy secretary for the Department of Homeland Security, told CNN last week that the regulation provides colleges “massive flexibility” to implement hybrid models of online and in-person education.

The deadlines set by the federal government require swift action on the part of universities.

Harvard and MIT lawyers noted that the directive requires higher education institutions that offer entirely online classes or programmes to submit an operational change plan to the federal Student and Exchange Visitor Program (SEVP) within nine days (by 15 July), while those offering a hybrid model must issue new immigration paperwork for each student – “in some cases numbering in the thousands per university” – by 4 August.

Political implications

President Trump has been eager to reopen the nation’s economy despite ongoing concerns that the coronavirus remains a public health threat.

Many Trump critics say his attacks on universities and efforts to downplay the seriousness of the pandemic are motivated by politics, and a delay imposed by the US District Court judge in Massachusetts could move deadlines until after the presidential election in November.

SEVP posted the ICE decision just hours after Harvard announced it would hold all college classes online in the autumn and permit no more than 40% of undergraduates to return to the residence halls. Shortly after Friday’s hearing, President Trump tweeted that he was ordering the Department of the Treasury to look into the tax-exempt status and funding of universities, saying too many “are about radical left indoctrination, not education”.

In a White House event on Tuesday with education leaders, including college presidents, Trump said the administration was “very much going to put pressure on the governors and the schools to reopen”.

More questions than answers

Meanwhile, students and faculty around the country took to Twitter and other social media to consider stop-gap solutions such as creating one-credit courses, taught face to face, for international students. Some professors offered to supervise face-to-face independent study courses, which allow students and professors to create an individualised study plan.

Many international students are considering taking a semester or more off or deferring admission to next year in hopes that a new US presidential administration would resolve the issue. Another option would be to transfer to another university.

At George Mason University, international students flooded an online webinar with questions that collectively underscore the complex, individual nature of the requirements.

Entering students faced different circumstances from those of seniors who expect to graduate next spring. Some graduate assistants were working remotely, either as instructors or researchers – would they have to take an on-campus course? Would a chemistry lab meet the definition? What if a student doesn't get their documentation by the August deadline? How quickly would students have to leave the country?

“You have a lot of questions; we also have a lot of questions. We will do our best to get them answered,” one adviser told students. “This week is going to be a busy week.”