New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Foreign Students; Immigration & International Activities; Government Relations; Authorizations & Regulations

Statement by ACE President Ted Mitchell About Bipartisan Congressional Efforts to Protect Dreamers (Jan. 18, 2018)

Statement by the President of the American Council on Education (ACE) expressing strong support for a bipartisan, legislative solution by congressional leaders to protect individuals affected by the President’s rescission of the Deferred Action for Childhood Arrivals program. The statement provides, “[i]t is of paramount importance to keep the door open in this country to an entire generation of young people who seek only to contribute their best to the United States, the only country they have ever called home.” ​

Immigration & International Activities; Government Relations; Authorizations & Regulations

Presidents’ Alliance Letter to Congress on Higher Education and Immigration (Jan. 11, 2018)

Letter from the Presidents’ Alliance to Congress urging bipartisan legislation to protect individuals affected by the President’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The Presidents’ Alliance is a newly formed, non-partisan group of over 200 college and university presidents concerned about the impact of the nation’s immigration policies and practices on their institutions’ students, campuses, communities, and states. The letter provides that “Dreamers are bright, hardworking, entrepreneurial young people whose contributions are already strengthening our country through their work as teachers, nurses, doctors, business owners and service members in our nation’s military,” and that protecting Dreamers from deportation is a moral imperative that if left unaddressed by Congress, would leave our nation “poorer for their loss.” 

Immigration & International Activities; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity

Kader v. Board of Regents of Harris-Stowe State University (Mo. Ct. App. Jan. 9, 2018)

Opinion reversing a jury verdict and remanding the action for a new trial.  Plaintiff, an instructor in Early Childhood Development at Harris-Stowe State University (HSSU), alleged that HSSU discriminated against her based on national origin and retaliated against her by declining to appeal the denial of her O-1 visa and refusing to grant her a leave of absence.  A jury found in Plaintiff’s favor, in part based on disjunctive jury instructions that required the jury to find in favor of the Plaintiff if it concluded that “Defendant denied Plaintiff a work leave of absence” and that the denial stemmed from discriminatory animus.  Having concluded that federal law precluded HSSU from employing Plaintiff after her visa expired, and that compliance with federal law and not discriminatory animus motivated Defendant’s decision to deny Plaintiff the requested leave of absence, the court concluded that the jury instructions were erroneous and prejudiced the Defendant.

Immigration & International Activities

Regents of the University of California v. Dep.’t of Homeland Security (N.D. Ca. Jan. 9, 2018)

Order granting Plaintiffs’ Motion for Provisional Relief.  Plaintiffs, the University of California (UC) on its own behalf and on behalf of its students (and other plaintiffs through a series of consolidated cases), sought a preliminary injunction to restore the Deferred Action for Childhood Arrivals (DACA) Program.  At issue was whether the Department of Homeland Security (DHS) acted lawfully in rescinding DACA.  In awarding the injunction, the court found that Plaintiffs were likely to succeed on their claim that the DACA rescission was “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law” because (1) the rescission was based on a flawed legal premise regarding DHS’s authority to implement DACA and (2) the government’s post hoc rationalization for the rescission—managing litigation exposure—was an arbitrary and capricious, after-the-fact justification that amounted to an abuse of discretion.  The court also concluded that UC would suffer irreparable harm if DACA were to be rescinded on the March 5 deadline, as it would lose valuable students and staff and suffer losses from the considerable investments it made in recruiting students and staff.  Finally, in concluding that the public interest was best served by keeping DACA in place, the court looked to the reasons underlying the program in the first place, as well as President Trump’s tweets calling on Congress to codify DACA into law.

Foreign Students; Immigration & International Activities; Constitutional Issues

County of Santa Clara and County of San Francisco v. Trump, et al. (N.D. Cal. Nov. 20, 2017)

Order granting Plaintiffs’ Motion for Summary Judgment and permanently enjoining Defendants from enforcing Section 9(a) of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” (EO). Plaintiffs, the County of Santa Clara and County of San Francisco, brought independent suits challenging the constitutionality of Section 9(a) of the EO, which conditions federal funding on compliance with 8 U.S.C. 1373 and deems any state or local government that declares itself to be a “sanctuary jurisdiction” ineligible for federal grants.  The court found that the EO violated the separation of powers doctrine, specifically because it infringed upon Congress’ exclusive spending power; exceeded the federal government’s spending power under the Tenth Amendment and also violated the Amendment’s prohibition against commandeering states to enforce federal law; violated the Fifth Amendment for constitutional vagueness and failure to provide clear standards to prevent arbitrary and discriminatory enforcement; and abridged the Fifth Amendment right of procedural due process. 

Immigration & International Activities; Employment; Foreign Students

Int’l Refugee Assistance Project, et al. v. Trump (D. Md. October 17, 2017)

Memorandum and Opinion granting-in-part and denying-in-part Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, consisting of twenty-three individuals and seven organizations, challenged the President’s Proclamation 9645, which indefinitely barred the entry into the United States of foreign nationals from Chad, Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela, because of identified security inadequacies related to terrorism and other public-safety threats. The court found that Plaintiffs were likely to succeed on their claims that the Proclamation violates the Establishment Clause and section 1152(a) of the Immigration and Nationality Act, which bars discrimination on the basis of nationality in the issuance of immigrant visas.  Regarding Plaintiffs’ Establishment Clause claim, although the court noted that “past actions do not ‘forever taint’ present ones,” it was not persuaded that the third iteration of the travel ban cured previous constitutional violations by evidencing “rejection of the President’s prior calls for a Muslim ban.” Furthermore, the court found Plaintiffs established a likelihood of irreparable harm, that the balance of equities weighed in favor of the Plaintiffs, and the injunction would further the public interest of preventing discrimination and constitutional violations. The injunction is limited to barring enforcement against individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States” and will not apply to travelers from Venezuela or North Korea.

Foreign Students; Employment; Immigration & International Activities

Trump v. International Refugee Assistance Project Summary Disposition (U.S. October 10, 2017)

Order vacating and remanding Trump v. International Refugee Assistance Project to the U.S. Court of Appeals Fourth Circuit to dismiss as moot. The Court found that the provisions of Executive Order No. 13,780 had “expired on its own terms” on September 24, 2017, and therefore, the case no longer presented a live case or controversy. 

Foreign Students; Immigration & International Activities

American Council on Education Publishes Web Resource on Dreamers and Deferred Action Childhood Arrivals (October 2017)

The American Council on Education (ACE) has published a web page resource entitled, Protect Dreamers Higher Education Coalition, that contains materials related to the Deferred Action Childhood Arrivals (DACA) program. The Department of Homeland Security recently rescinded policies of the DACA program, which granted certain individuals unlawfully present in the United States a formal reprieve from deportation. The ACE publication provides resources that campuses may find helpful in discussing this issue, such as an overview of term distinctions between Dreamers and DACA recipients, information on the economic impact of the DACA program rescission, and additional resources for members of the higher education community who wish to advocate on behalf of affected individuals.