In a surprise “Broadcast Message” on July 6, the Trump Administration announced its plan to forbid foreign students from attending any school that is holding its fall classes fully online.  The list of such schools includes Harvard University, MIT, the University of Southern California and the entire California public state college system – among many other colleges and universities that have made the considered decision to hold classes entirely online in the interest of COVID safety.  Should this rule go into effect, F-1 students may not attend a college or university entirely online.  The State Department will be instructed not to issue visas to such students; U.S. Customs and Border Protection will not admit such a student who already has a visa; and students in the U.S. must leave or enroll in a school that is not entirely online.

The impact of this rule is huge.  There are just over one million foreign students in the U.S., and it is estimated that hundreds of thousands could be forced to leave.  This is obviously a personal tragedy to each affected student, and the combined loss of tuition revenue would be devastating to public and private institutions.  It would be hard to imagine a more effective way to multiply the already enormous economic impact of the coronavirus on communities throughout the country.

This is an astonishing exercise of executive power.  Many colleges and universities have made the decision that online instruction best protects the health of students, faculty, staff and the surrounding community.  The President has made no secret of his strong desire to have schools return to normal in-person operation this fall, despite the pandemic and advice from public health experts that it is far too soon to open up. It appears that he has decided to use immigration as a weapon to force his outcome.

The good news is that only two days after the “Broadcast Message”, Harvard and MIT have filed suit in federal district court in Massachusetts to prevent the rule from being issued.  The suit asks for a temporary restraining order and a preliminary and permanent injunction on the ground that the rule violates the Administrative Procedure Act.  The rule is arbitrary and capricious because it fails to consider important aspects of the problem before the agency, namely the health and safety of students, faculty, staff and the community; and the rule fails to offer any reasoned basis that could justify the policy.  In addition, the announcement makes no provision for the notice and comment that is required where a rule would alter substantive rights and responsibilities.

Many educational institutions have already said that they will join Harvard and MIT in opposing the President’s action.  American higher education is said to be the best in the world.  We think the Administration will have met its match.