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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; Employment; Immigration & International Activities

Trump v. Hawaii (U.S. Supreme Court, June 26, 2018)

Order and Opinion reversing the judgment of the Court of Appeals and remanding for further proceedings.  This case concerns Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017), which restricts entry into the United States of foreign nationals from Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen.  The Proclamation was issued upon recommendation from the Acting Secretary of Homeland Security, after conducting “a worldwide, multi-agency review,” “to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present ‘public safety threats.’” Plaintiffs alleged that the Proclamation exceeded the President’s authority under the Immigration and Nationality Act (INA) and violated the Establishment Clause and the First Amendment.  In upholding the Proclamation, the Court held that the President lawfully exercised the “broad discretion” afforded to him through the INA.  Turning to Plaintiffs’ Establishment Clause and First Amendment claims, in which Plaintiffs’ argued that the Proclamation was unlawfully motivated by anti-Muslim sentiment, as evidenced through Presidential tweets, campaign statements, and interviews; the Court concluded that “the Government has set forth a sufficient national security justification.”  Although it considered extrinsic evidence of these statements, it nonetheless applied rational basis scrutiny to conclude, “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’”  

6/26/2018
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Foreign Students; Immigration & International Activities; Government Relations; Authorizations & Regulations

Letter from Ten Higher Education Associations to House Speaker Ryan Urging a Permanent Solution for DACA Recipients (June 20, 2018)

Letter from the American Council on Education and nine other higher education associations to House Speaker Ryan urging a long-term, legislative solution for Deferred Action for Childhood Arrivals (DACA) recipients. The letter expresses appreciation for recent efforts to address the uncertain fate of DACA recipients through the proposed Border Security and Immigration Reform Act of 2018, while urging Congress to continue to decisively craft a bipartisan solution for protecting the 1.8 million “high-achieving and talented young people” known as Dreamers.

6/21/2018
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Foreign Students; Immigration & International Activities

Joint Statement by Higher Education Associations to the Senate Judiciary Committee for Student Visa Integrity Hearing (June 6, 2018)

Joint Statement by the American Council on Education, the Association of American Universities, the Association of Public and Land-grant Universities, and the Council on Governmental Relations to the Senate Judiciary Committee for Student Visa Integrity Hearing. The Statement emphasizes each associations’ commitment to protecting “national security interests associated with scientific research conducted at universities” and highlights a number of successful past collaborations between the higher education community and security agencies, while also voicing disappointment over the disbanded FBI National Security Higher Education Advisory Board, which allowed high-level university leaders to directly communicate with governmental security officers. The Statement notes that “[p]rotecting our national and economic security while ensuring that the United States remains the destination of choice for the world’s best and brightest students, faculty, and scholars are not mutually exclusive.” In support of these interests, the Statement proposes expanding the National Science Foundation and the National Defense Science and Engineering fellowship programs, enacting the I-Squared Act to strength our high-skilled immigration system, and providing consistent funding to various government agencies and research foundations. The Statement concludes by welcoming the opportunity to work with Congress to “identify higher education community leaders who can speak to what universities are already doing to address key security concerns” as they relate to research.

6/8/2018
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Foreign Students; Immigration & International Activities

Statement by APLU on the U.S. Department of State’s Reported Plans to Limit Visa Duration for Some Chinese Students (May 30, 2018)

Statement by the Association of Public and Land-Grant Universities on Reports of Chinese Student Visa Restrictions. The statement acknowledges U.S. national and economic interests in protecting its intellectual property, but argues that “student-visa policies for Chinese citizens to protect against security concerns should be narrowly tailored to ensure they don’t needlessly deter the brightest minds from studying in our country.” The American Council on Education released a similar statement regarding these reports.

5/31/2018
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Foreign Students; Immigration & International Activities

Statement by the ACE President on Reports of Chinese Student Visa Restrictions (May 30, 2018)

Statement by the American Council on Education (ACE) on Reports of Chinese Student Visa Restrictions. The statement addresses reports of possible Chinese student visa limitations by the Department of State due to national and economic security concerns. The statement provides that, “[w]hile apparently aimed at Chinese students in certain STEM fields, this [policy] would have a chilling effect on our ability to attract international students from all countries.” The statement urges federal officials to work with ACE “to ensure that America’s national and economic security is protected, while at the same time preserving the U.S. as a destination of choice for the world’s best and brightest students and scholars.” The Association of Public and Land-Grant Universities released a similar statement regarding these reports.

5/31/2018
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Financial Aid; Students; Foreign Students

Barrett v. Regents of the University of California (Cal. App. May 15, 2018)

Unpublished Opinion affirming Defendant’s Motion to Dismiss. Plaintiff, a student at the University of California (UC) Berkeley School of Law, alleged that UC breached its employment contract with Plaintiff by failing to award her tuition remission for work that she performed as a reader in the Academic Student Employee (ASE) program. Preliminarily, the court affirmed dismissal since public employment in California is governed by statute, and not contract.  Moreover, Plaintiff could not proceed on an alternative theory of liability because UC Berkeley’s policies expressly specified that graduate students in “self-supporting” programs, such as the LL.M program in which the Plaintiff was enrolled, were ineligible for tuition remission.  

5/17/2018
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Foreign Students; Employment; Immigration & International Activities

Letter from Thirty-Seven Higher Education Associations to the Department of Homeland Security Advocating for Timely Processing of Deferred Action for Childhood Arrivals Renewal Applications (April 13, 2018)

Letter from the American Council on Education and thirty-six other higher education associations to the Department of Homeland Security (DHS) on the initiation of DHS’s renewal process for Deferred Action for Childhood Arrivals (DACA) registrants. In light of the preliminary injunction issued in Regents of the University of California v. Department of Homeland Security, which required DHS to maintain the DACA program on “the same terms and conditions as were in effect before the rescission on September 5, 2017,” the letter urges DHS and the U.S. Citizenship and Immigration Services to expedite the review and processing of all renewal applications – particularly those applications that have recently expired or will expire in the near future. The letter also advises that DACA recipients would benefit from agency guidance and assurance on whether a gap in status would jeopardize their renewal, given that a backlog of applications may result in the lapse of recipients’ two-year status and the loss of their accompanying protections under DACA.

4/16/2018
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Foreign Students; Employment; Immigration & International Activities

Amicus Brief in Trump v. Hawaii, et al. (March 29, 2018)

Amicus brief by the American Council on Education (ACE) and thirty-two other higher education associations in support of Respondents in the case of Trump v. Hawaii, et al. At issue is whether the Presidential Proclamation issued on September 24, 2017—which indefinitely suspended immigration from eight countries, subject to certain exceptions—is within the President’s authority, is impermissibly overbroad, or is unlawful under the Establishment Clause of the U.S. Constitution. Amici argue that the Proclamation sends a message of exclusion that negatively harms American educational institutions in their recruitment of international students and scholars and the cross-border exchange of ideas. Amici argue, “the Proclamation jeopardizes the many contributions that foreign students, scholars, and researchers make to American colleges and universities, as well as our nation’s economy and general well-being.”

4/2/2018
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