POSTED BY HANK REICHMAN

Following are excerpts from an amicus brief filed yesterday in the case of Hameed Darweesh and People of the State of New York v. Donald Trump by seventeen prominent private research universities, including all eight members of the Ivy League.  The amici are: Brown University, Carnegie Mellon University, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Northwestern University, University of Pennsylvania, Princeton University, Stanford University, Vanderbilt University, and Yale University.

INTRODUCTION AND SUMMARY OF ARGUMENT

While each amicus is located in the United States, amici’s missions and reach are truly global: they educate, employ, conduct research, and collaborate with students, faculty, and scholars from all over the world—individuals who speak different languages, practice different religions, and have wide-ranging life experiences that illuminate amici’s campuses and support their academic missions. These international students, faculty, and scholars, make significant contributions to their fields of study and to campus life by bringing their unique perspectives and talents to amici’s classrooms, laboratories, and performance spaces. These individuals also contribute to the United States and the world more generally by making scientific discoveries, starting businesses, and creating works of literature and art that redound to the benefit of others far beyond amici’s campuses. So too, by studying in the United States, these international students, faculty, and scholars gain a greater understanding of and appreciation for the values we hold dear, including democratic principles, respect for the rule of law, and the values of tolerance and human rights, which they may then bring to their home countries. Recognizing the invaluable contributions of international students, faculty, and scholars, amici make significant efforts to attract the most outstanding and talented individuals from around the globe.

The Executive Order at issue here threatens amici’s continuing ability to attract these individuals and thus to meet their goals of educating tomorrow’s leaders from around the world. On January 27, 2017, President Donald J. Trump signed Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” See 82 Fed. Reg. 8977 (2017). Among other things, the Order “suspend[s]” for a period of 90 days “immigrant and nonimmigrant entry into the United States of aliens” from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Executive Order § 3(c). Although the Order excludes certain visa-holders, it applies to individuals with the categories of visas most commonly relied upon by amici’s students, faculty, and scholars from around the world. Id. The Order also suspends for a period of 120 days the Refugee Admissions Program, and suspends indefinitely the admission of refugees from Syria. Id. § 5(a), (c).

While the Executive Order is currently limited to seven countries, its damaging effects have already been widely felt by American universities. When the Executive Order went into effect, the 90-day suspension of entry left some of amici’s students, faculty, and scholars stranded abroad, while others were unable to leave the United States to travel to their home countries or elsewhere for field research, academic meetings, and family and personal obligations. Prospectively, the Order threatens amici’s ability to attract the best students, faculty, and scholars from throughout the globe, who depend on the ability to leave and return to this country. The uncertainty generated by the Order and its implementation is already having negative impacts well beyond persons from the seven affected countries. People from all over the world are understandably anxious about having their visas prematurely canceled through no fault of their own. Individuals scheduled to attend academic conferences are uncertain whether they can attend, and many may have to cancel. Comments by high-ranking Executive Branch officials have suggested that the Order could be extended to other countries, heightening institutional anxiety. This casts doubt on the prospect and value of studying and working here for everyone.

These costs are significant and directly affect amici’s ability to pursue their missions. And they are being experienced absent any evidence that amici’s lawfully-present students, faculty, and scholars—all of whom have already undergone significant vetting by the government—pose any threat to the safety or security of the United States or amici’s campuses.

For these reasons, the presidents of 48 leading American colleges and universities recently explained that the Executive Order “threatens both American higher education and the defining principles of our country.”  Accordingly, amici respectfully submit this brief in support of the relief sought by Petitioners and Intervenor-Plaintiff. . . . .

II. The Executive Order Harms Students, Faculty, Scholars, and Universities.

The Executive Order has serious and chilling implications for amici’s students, faculty, and scholars. By prohibiting persons from freely traveling to and from this country, the Executive Order divides students and their families, impairs the ability of American universities to draw the finest international talent, and inhibits the free exchange of ideas. See Washington v. Trump, No.17-35105, __ F.3d__, 2017 WL 526470, at *11 (9th Cir. Feb. 9, 2017) (referring to these effects as “substantial injuries”). Because of these effects, the Executive Order has drawn staggering opposition from the academic world. More than 42,000 scholars—including 62 Nobel Laureates, 813 Members of the National Academies of Sciences, Engineering, and Arts, and 105 recipients of prestigious awards like the Fields Medal and Pulitzer Prize—have explained their opposition:

The EO significantly damages American leadership in higher education and research. US research institutes host a significant number of researchers from the nations subjected to the upcoming restrictions. From Iran alone, more than 3000 students have received PhDs from American universities in the past 3 years. The proposed EO limits collaborations with researchers from these nations by restricting entry of these researchers to the US and can potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the US. We strongly believe the immediate and long term consequences of this EO do not serve our national interests.

It is imperative to amici that the Court account for these and other detrimental effects of the Executive Order in considering its legality.

First, the Executive Order excludes from this country students, faculty, and scholars who make valuable contributions to American universities. Some of these are individuals who had the misfortune of traveling abroad when the Executive Order went into effect. These individuals—talented, law-abiding members of amici’s academic communities—left the United States in possession of valid visas. They were visiting family, conducting field research, and attending academic conferences and meetings in furtherance of their studies.65 All planned to return here following their travels abroad. Instead, they found themselves suddenly stranded and separated from their families, homes, studies, and work. That separation caused anguish and uncertainty for
the affected individuals and their friends and families. It also disrupted their studies and hampered the work of their colleagues, leaving research projects half-finished, dissertations half-written, andcourses without an instructor.

The Executive Order also separated members of amici’s communities from their family members who were traveling abroad. For instance, a Ph.D. student from one amicus was separated from his wife, who was home visiting her family in Iran when the Executive Order went into effect. Although she possessed a valid visa when she departed the United States, Turkish Airlines refused to issue her a boarding pass when she attempted to return.66 This separation was sufficiently traumatic that the student is considering withdrawing from his academic program.67 At a different amicus university, one faculty member’s spouse and baby were abroad and unable to return. At another amicus university, a researcher’s wife was unable to join him in the United States.

Second, in addition to keeping individuals out of the United States, the Executive Order has also effectively forced others to remain in this country. Students, faculty, and scholars affected by the Executive Order now find themselves unable to leave the United States; doing so risks invaliding their visas and barring them from reentry. These individuals are now deterred from conducting field research, attending academic conferences, or participating in international meetings in foreign nations; for some, the inability to travel will force them to set aside projects that simply cannot be completed without travel abroad. There is also a personal toll, as they must cancel any plans to visit family and friends abroad: fly home to attend the wedding or funeral of a family member, and one risks the loss of one’s visa, separation from family and friends here in the United States, and the loss of a job, an academic degree, and years of hard work and research.

These effects are already being felt. One scholar at Princeton has already cancelled attendance at international conferences over the past few weeks, and though upcoming trips are important to the scholar’s work, they too will be canceled in light of the Order. At Yale, international academic research conducted by Yale’s MacMillan Center’s Political Violence Lab has been curtailed as a direct result of the Order; so too, at the University of Chicago’s Oriental Institute, the Executive Order threatens to shut down excavation projects in Iraq, Iran, and Iraqi Kurdistan. A student at another amicus university has canceled travel to visit elderly grandparents and worries that they may never be reunited because of the Order. Another student worries that he may not be able to travel to conduct research in support of his dissertation, imperiling its completion.

Third, the Executive Order hurts American universities by deterring international students, faculty, and scholars from studying here. Amici, like other American universities, aim to attract the brightest, most talented students, faculty, and scholars from around the globe. The Executive Order hampers amici’s ability to do so because if people cannot freely leave the country, they will inevitably study elsewhere. Moreover, if a valid visa may be revoked at any moment based simply on a person’s country of origin, the Executive Order alters the perceived cost-benefit analysis of studying or teaching here, even for persons from countries unaffected by this particular Executive Order. Studying and working in this country has historically been a key asset to attract international talent to American universities; by casting uncertainty on that process, the Executive Order turns that asset into a risk factor that may deter rather than attract talent.

Reducing the international presence on amici’s campuses will diminish the academic experience in this country. As discussed supra, the benefits of international diversity to American universities are manifold. And it is not merely the classroom experience that will suffer. American laboratories, which are a major driver of our economy, depend on the ability to attract the best trainees and postdoctoral fellows from around the world, as well as the collaboration of foreign scientists in areas of science that have no defense or security implications. The Order diminishes amici’s ability to attract these scientists, who will otherwise go to foreign laboratories.

Indeed, international universities have noted this effect and issued statements criticizing the Executive Order and touting their own opportunities for international students and scholars.  For instance, the Vice-Chancellor of the University of Cambridge, UK stated: “While we acknowledge that a country must have the right to manage its own borders, this ban is fundamentally at odds with the values of openness, tolerance and evidence-based decision-making that the University of Cambridge stands for.”  He added: “We are determined to champion openness, and the free exchange of knowledge across borders. Even as governments around the world seek to curb freedom of movement, the University of Cambridge remains committed to welcoming the best and brightest students and staff – irrespective of their nationality.”

Amici are already experiencing these effects too. For example, a postdoctoral fellow from Iran had been hired to work in the lab of a Princeton professor, but was prevented from entering the country after the Order took effect. An accepted student at Yale’s School of Management from Iran is now rethinking his options because of the uncertainty. Similarly, Yale’s MacMillan Center Council on Middle East Studies and its Program on Iranian Studies is currently conducting searches for post-doctoral fellows and visiting scholars, with the most promising candidates being Iranian nationals who are currently abroad. The uncertainty with regard to securing visas will affect acceptances of offers. The University of Pennsylvania has similar concerns, with three
faculty recruits whose opportunities may be eliminated by the Executive Order. Princeton and MIT, too, have received numerous inquiries from academic departments about how to handle the questions and concerns of faculty and scholar recruits who have expressed hesitance about coming to the U.S. in light of the Order.

Fourth, the Executive Order will impede successful academic collaboration in the United States. American universities host thousands of conferences and symposia each year. These academic meetings are incubators for innovation and thrive on the free flow of information and ideas. By hosting these events, amici ensure that their scholars participate in them. Such collaborations are essential to addressing problems that are global in scope, such as geopolitical conflict, terrorism, and the spread of communicable diseases.

The Executive Order threatens the success of these efforts both by prohibiting certain academics from traveling to the U.S. and by risking a backlash from others who are not subject to the ban. Indeed, international universities have observed that the Executive Order will impede collaborative partnerships with American universities.  And these effects are already being felt.  After the Executive Order was issued, an Iraqi postgraduate student from the University of Exeter was stopped from boarding a plane to the United States, where he had been invited to present an academic paper along with his professors. 72 Despite the fact that he obtained a valid visa, the Executive Order deprived him of the opportunity to present here, and deprived American students, faculty, and scholars from hearing about his research. Likewise, the University of Pennsylvania had planned to invite three Iranian human rights activists to a conference in March, but with the Executive Order in effect their participation would be barred. Similarly, a faculty member at Dartmouth planning a conference for next fall has expressed concern that participants may not be able or willing to travel to the United States, and one keynote speaker wonders whether it “sends the wrong message” to attend a conference in the U.S. at this time. The Sharmin & Bijan Mossavar-Rahmani Center for Iran and Persian Gulf Studies at Princeton expressly aims to advance understanding of Iran and the Persian Gulf; if the Center cannot invite Iranian guest speakers, the Center obviously will be impeded in serving its mission.

What is more, faculty members from around the world already have called for a boycott of academic conferences in the United States in response to the Executive Order.  A petition circulating online has drawn thousands of signatures from scholars in the United States and abroad pledging not to attend international conferences in the United States while the travel ban persists.  Thus, the Executive Order threatens collaboration well beyond scholars from and institutions in the seven affected countries.

Academic conferences and meetings facilitate major breakthroughs and discoveries, candid discussion and debate, and face-to-face meetings that inevitably generate future collaborations and partnerships. Excluding scholars from the seven affected countries—and other scholars who may choose not to participate because of the Order—will hamper the success of these scholarly collaborations. Moreover, American universities, students, and faculty will inevitably suffer when these meetings are shifted outside the United States to avoid the Executive Order’s effects.

Finally, as amici have explained, they strive to foster a culture of diversity, inclusion, and tolerance on their campuses. Supra Part I. The Executive Order undercuts those important efforts by making many of amici’s students, faculty, and scholars feel “less than,” and signaling, from the highest levels of government, that discrimination is not only acceptable but appropriate. Rather than securing American universities, this thwarts amici’s ability to foster a diverse environment in which individuals feel comfortable contributing to a robust exchange of ideas. . . .