Harvard Affiliates, Other Colleges and Universities File Amicus Briefs In Support of ICE Lawsuit

UPDATED: July 12, 2020, at 11:32 p.m.

Ahead of a Tuesday hearing, supporters within and outside Harvard have begun to prepare and file amicus briefs in the University’s lawsuit against Immigration and Customs Enforcement and the Department of Homeland Security.

The lawsuit, which Harvard filed Wednesday with MIT, seeks a temporary restraining order and preliminary and permanent injunctions that would prevent immigration authorities from enforcing new guidelines that bar international students taking online-only courses from residing in the United States.

For Judge Allison D. Burroughs to grant a temporary restraining order and preliminary injunction — the subject of the upcoming hearing — Harvard and MIT have to prove that they are likely to win the lawsuit on its merits and that the guidelines will cause irreparable harm if they are enforced while the litigation is in process.

At a pretrial hearing on Friday, Burroughs told William F. “Bill” Lee ’72 — a lawyer for Harvard and MIT and the Senior Fellow of the Harvard Corporation — to instruct potential amici to focus on the “big-ticket” item of the likelihood of success at trial rather than irreparable harm.

But the issue of harm — top-of-mind for international students grappling with the issue in real-time — has garnered more attention thus far from affiliates and potential amici.

In an email to concentrators Thursday, Economics director of undergraduate studies Jeffrey Miron asked students to contact Allen D. Aliose, the Graduate School of Arts and Sciences’s dean for administration and finance, with stories about how the guidelines would impact them so that the narratives could be passed to the Office of the General Counsel.

“One thing to think about: this judge is very responsive to stories of students liable to suffer ‘irreparable harm’ from the ruling,” Miron wrote.

In one recent high-profile case, Burroughs found Harvard students' testimony convincing. She presided over the anti-affirmative action lawsuit between Harvard and Students for Fair Admissions in Oct. 2018, and in her ruling in favor of the University, she mentioned the experiences of the eight students and alumni who testified as amici.

“It is likely that eliminating consideration of race would significantly disadvantage at least some Asian American applicants, as evidenced by the testimony of the amici at trial, all of whom viewed their race or ethnicity as a critical aspect of their life experiences and applications to Harvard,” Burroughs wrote at the time.

Though it remains unclear if students’ stories will have the same impact in this case — and Burroughs said they were not her primary focus — efforts to collect them have continued.

James A. Mathew ’21 and Ifeoma E. “Ify” White-Thorpe ’21, the president and vice president of the Undergraduate Council, also sent an email to students on Saturday informing them of an effort by “various student governments” to file an amicus brief.

Student governments at 15 other universities have already been in contact with legal counsel at the law firm Clifford Chance, per Mathew and White-Thorpe’s email. Though the UC will not vote on its involvement in the lawsuit until Sunday, it has already begun collecting student narratives due to “how time-sensitive and important” the issue is.

“As the student body of one of the lawsuit's plaintiffs, our voices are especially valuable,” Mathew and White-Thorpe wrote.

More than 50 colleges and universities — including Brown University, Cornell University, Princeton University, and the University of Pennsylvania — also filed an amicus in support of Harvard's motion for a preliminary injunction Sunday.

The Presidents’ Alliance on Higher Education and Immigration — a coalition of American college and university chancellors and presidents committed to increasing public understanding of immigration policies and their implications on education — filed a brief on behalf of 180 member schools in support of Harvard and MIT Friday. The amicus brief focuses on how higher education institutions relied on guidance issued by ICE in March while planning for the fall semester.

The member schools’ brief also notes that the new guidance issued by ICE will place “significant burdens” on international students — an issue Harvard focused on in its own filings. Court filings revealed the reasoning behind its decision to continue remote instruction, which administrators wrote was largely informed by the assumption that previously issued guidelines would be “in effect for the duration of the emergency.”

Miriam Feldblum, the Executive Director of the Presidents’ Alliance on Higher Education and Immigration, wrote in a press release that ICE’s policy only serves to “severely disrupt” the lives of international students.

“This quasi–international student ban represents another unfortunate assault by the administration against immigrants and higher education—a ban made especially disappointing given SEVP’s former guidance that promoted and recognized the need for flexibility amidst a global pandemic,” Feldblum wrote. “The number of institutions speaking out on behalf of international students demonstrates the breadth of support for international students and the appreciation of the immense contributions they bring to all our campuses.”

—Staff writer Camille G. Caldera can be reached at camille.caldera@thecrimson.com. Follow her on Twitter @camille_caldera.

—Staff writer Michelle G. Kurilla can be reached at michelle.kurilla@thecrimson.com. Follow her on Twitter @MichelleKurilla.