By Pam Zubeck
Colorado was among the nearly 20 states to file a lawsuit to stop a new federal rule that bars hundreds of thousands of international students — thousands in Colorado alone — from remaining in the United States to study if they don’t return to classrooms for instruction.
The rule, which some argue aims to pressure states to force colleges and universities to open campuses to classroom learning rather than rely on distance instruction amid the coronavirus pandemic, was imposed by the Trump administration. COVID-19, the disease caused by the virus, has killed more than 130,000 Americans, and case numbers have sharply escalated in the last month or so.
President Donald Trump has demanded that K-12 schools reopen in the fall, as well as colleges and universities, in what some see as a political ploy to boost his re-election campaign.
Colorado Attorney General Phil Weiser issued a news release today, regarding the court challenge filed on July 13.
The lawsuit challenges what the attorneys general call the federal government’s “cruel, abrupt, and unlawful action to expel international students amidst the pandemic that has wrought death and disruption across the United States.” Today’s lawsuit seeks an injunction to stop the Immigration and Customs Enforcement (ICE) July 6 Broadcast Message—which is a reversal of prior guidance regarding the inclusion of international students at postsecondary institutions—from going into effect. This abrupt federal policy change adversely impacts Colorado’s 31 public and 85 private postsecondary institutions and the 11,316 active international students that the Student and Exchange Visitor Information System database indicates were studying in Colorado pursuant to F-1 and M-1 visas as of January of 2020.
“The thousands of international students studying in Colorado have already had their lives disrupted by the COVID-19 pandemic, which has brought travel restrictions, quarantine requirements, and safety risks associated with both remaining in the U.S. and returning home,” said Weiser. “They, and the institutions they attend, deserve to continue the plans schools painstakingly developed to ensure student and educator safety before this abrupt reversal. And ICE’s message that the United States does not welcome foreign students is wrong, counterproductive, and illegal.”
Guidance issued on March 13 recognized the COVID-19 pandemic, provided flexibility for schools, and allowed international students with visas to take classes online for the duration of the emergency. But on July 6, ICE announced a policy change with no notice that international students can no longer live in the United States and take all of their classes online during the pandemic. This action upended several months of careful planning by Colorado colleges and universities to limit in-person instruction in favor of remote learning and adapt their coursework for the fall semester. In so doing, it threatened to leave thousands of students already in the country with no other choice but to leave; for others, who were supposed to return for the fall semester, this action would leave them unable to do so.
The lawsuit explains that the new rule fails to consider the tremendous costs it would impose on postsecondary institutions to readjust plans and certify students. This action also failed to take account of the loss of revenue that institutions, local communities, and the U.S. economy would face if a COVID-19 spike during the fall semester causes in-person classes to be suspended and international students to drop out and return home. According to the Colorado Department of Higher Education, for example, if all international students were to drop out of the University of Denver, the school would loose more than $40 million. And according to NAFSA: Association of International Educators, international students contribute more than $400 million to Colorado’s economy and support more than 6,000 jobs.
The lawsuit argues that the federal government’s action is arbitrary, capricious, and an abuse of discretion because it reversed previous guidance without explanation, input, or rationale, violating the Administrative Procedure Act (APA). Moreover, the action is illegal under the APA because it failed to consider the need to protect public health and safety amidst the ongoing COVID-19 pandemic.