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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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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Unpublished Opinion affirming Defendant’s Motion to Dismiss.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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Foreign Students; Employment; Immigration & International Activities

Int’l Refugee Assistance Project, Inc. v. Trump (4th Cir., Feb. 15 2018)

Opinion affirming Plaintiff’s Motion for Preliminary Injunction. Plaintiffs, consisting of various associations with international clients and twenty-three U.S. citizens or lawful permanent residents, challenged President Trump’s Proclamation 9645, which indefinitely barred foreign nationals from Chad, Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela from entering the United States because of identified security inadequacies related to terrorism and other public-safety threats. Finding Plaintiffs had standing and the matter to be ripe for review, the court upheld the preliminary injunction since Plaintiffs were likely to succeed on their Establishment Clause claim, would suffer irreparable harm absent the injunction, and–to the extent that Plaintiffs could prove a bona fide relationship with an individual or entity in the U.S–the balance of equities and public interest weighed in their favor. Notably, in focusing on the first prong of the Lemon test to determine if the Proclamation violated the Constitution, the court found that “the President’s repeated statements convey[ed] the primary purpose of the Proclamation—to exclude Muslims from the United States,” compounded by the fact that the secular purpose offered by the Government was not publicly available and was “at odds with the list of countries actually included in the Proclamation.” Last, the court found that the district court did not abuse its discretion in issuing a nationwide injunction, so long as it also meant to adopt the Supreme Court’s bona fide relationship standard that categorically recognized a bona fide relationship to the U.S. for refugees sponsored by a U.S. resettlement agency.

2/21/2018
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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.” ​

1/22/2018
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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. 

11/27/2017
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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.

10/20/2017
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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. 

10/18/2017
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