Students on F1 visas in the US had a reason to celebrate last week when the Trump administration withdrew a proposal to tighten rules about foreign students taking online-only classes at US universities and colleges in Fall 2020. The action came in response to a lawsuit filed by both Harvard and MIT, joined by many Ivy League schools and colleges in the University of California system.
Student predicament
At issue was a directive from the Trump administration on July 6 which forbade international students from taking online-only classes at US institutions. The directive said that students must attend a campus that offers in-person instruction model or a hybrid model. If students are enrolled in a university that is planning to go fully online, the administration asked students to either switch to another university or return home. Only eight percent of colleges had decided to only offer courses online. International students at more than 80 per cent of colleges would not have been impacted by this rule.
Still, the directive rocked the world of higher education like no news in recent memory. The criticism was unanimous and Trump’s approval among international students, already abysmally low, went down several notches.
But a careful reading of what happened provides a different perspective.
Background
The US law is very clear about this issue. Foreign students cannot take more than one online course per semester when they are in the United States on a student visa. This rule goes back decades and is intended to prevent students from entering the US on a student visa but living far away from campus, and potentially engaging in illegal conduct away from the watchful eyes of the Designated School Official (DSO), who, by law, oversees every aspect of the state of international students while in the United States.
The extent of DSO oversight starts from the time students first arrive on campus. One of the first things that they do is to report to the DSO, who monitors student progress until they leave the country, or move on to a different visa category. The DSO ensures that students maintain rules regarding their student status, such as enrolling full-time, not dropping out of classes, working only on campus, not working in excess of permitted hours, securing permission to train, transfer to another institution, or change status. The DSO is also the first point of contact for students for any questions they may have about their education.
Changing nature of education
When international students attend a college that moves all classes online , the DSO will no longer be able to monitor student conduct because the student could be anywhere in America. If the government permitted students to stay in the US on a visa, they could potentially move to another city far away from campus, work at local business establishments in violation of visa rules, but still, take online classes. All western countries, including the UK, Germany, Australia, and New Zealand impose restrictions on how many hours, where, and what kind of position a student can have.
Indeed the world changed as a result of lax American oversight of international students. Several 9/11 hijackers were enrolled as students in a flight school in Arizona and Florida where they learned to fly planes that could later be used as weapons against Americans. If these students were attending a traditional college or university that offers flight training, such as Embry-Riddle or Louisiana Tech, the DSOs could potentially have smelled something fishy and reported their behaviour to the government. The hijackers knew this, and to avoid scrutiny, chose two remote flying clubs.
Drastic measures
When Covid-19 hit the US in March, in the middle of the Spring semester, colleges were in a bind. They shut down campus facilities, including dorms, and asked students to leave — saying that the remaining classes for the term will be online. Many international students had nowhere to go, although some managed to return home just before the international airspace closed in many countries. Those that remained underwent enormous hardships, staying away from families and friends.
The Trump administration, recognising the emergency that students were in, issued its first directive allowing all students who had been forced to complete their semester online to do so —although such a move directly contradicts US law. The law permits Presidents enormous discretion to function as the head of the Executive branch, and the administration, extended the online-only benefit for students who may have enrolled for classes in the summer, several months away, quite generously.
When presidents think of executive orders (EO), they are required to follow the Administrative Procedure Act (APA) of 1946. Accordingly, an agency of the government is supposed to enter the draft order in the Federal Register, seek public comment for a period of 90 days, and only then formalise the order to be implemented. Oftentimes, the duration between when a president announces an EO to when it is actually implemented can take many months. The March directive clearly did not follow the APA. There simply wasn’t enough time for the EO to go through the APA process. Students needed instant relief as they were literally thrown out into streets when campuses suddenly closed.
Trump withdrawal
When the administration issued its July 6 directive, it was walking back from its overly generous March directive, but not all the way down to what the law requires. Remember that according to the law, an international student cannot enrol in more than one online course per semester. The remaining courses have to be in-person, on campus. The Trump administration had signalled enormous flexibility by suggesting that if a university offered a “hybrid” model, wherein students could largely take a course online, but attend campus for only one or two sessions for in-person instruction, the student would be deemed compliant with the law. Here too, the administration was being generous. A student could register for more than one hybrid course, indeed, they could sign up for an entire course load of hybrid classes, and the student would still be within the law.
But Harvard and MIT objected. They refused to let students back into the campus even for a few days for the entire semester. They simply wanted the March directive extended to the Fall semester also, no restrictions whatsoever. Their position was that the Covid crisis continues and the relief should extend too. It was ironic that Cornell, which had already announced that it was fully going in-person for the Fall, supported the Harvard position.
In court, however, Harvard could not object to the July 6 policy on its merits because the policy was already more generous than what the law required the administration to do. You can’t sue the government for simply following the law. So, Harvard and MIT were planning to argue, cleverly and a little disingenuously, that the July 6 policy was null and void because it did not go through the 90-day comment period of the APA. Did Harvard and MIT also complain that the March directive did not go through the same APA procedures? Of course not. When relief is awarded, no one complains.
Courtroom drama
The government saw what Harvard was doing, and withdrew its policy before a hearing began in front of the judge. It was entirely plausible that the judge could have ruled that the government should withdraw both its March and July policies because both did not meet the APA. Such a ruling would have been devastating to hundreds of thousands of students more than the July 6 directive. It would have brought the US back to the law of limiting students to take only one online course for a semester. The hybrid model would collapse and students at 32 per cent of all colleges would immediately be impacted.
The government’s withdrawal of the policy was seen by the media and the international student community as a victory of good over evil. The criticism was that the administration had not thought through the whole thing and was hopelessly defeated because it tried to overreach with its strict anti-immigrant stance. The truth was that the government withdrew its fairly reasonable July 6 policy because it didn’t want to risk a court judgement that would bring the US back to the law that exists in the books, despite the risks of having international students remain outside of the supervision of the DSOs.
Dilemma
Is it possible now that someone with standing, that is, someone who has been adversely affected by these EOs — such as restaurants and bars in a college town, or landlords whose livelihoods depend upon students coming to campus — could file a case against the Trump administration for not following the APA? Could they then gun for both policy directives to fall and force colleges to hold in-person classes?
A judge would have to grant the plaintiffs’ motion because the Supreme Court said so in a case just a month ago. In striking down another one of Trump’s EOs, the Court said that Trump had not followed the APA and therefore, the EO could not stand.
For the sake of international students let us hope that no such case is brought, placing the visas of students in jeopardy when they are willing to attend in-person classes but the colleges they are enrolled in are not prepared to open up their campuses. That would force them to return home.