POSTED BY HANK REICHMAN

The AAUP has joined with the American Council on Education and 32 other higher education groups in submitting an amicus brief on March 28, 2018, to the US Supreme Court opposing the Trump administration’s recent proclamation instituting a travel ban. The current iteration of the travel ban, introduced on September 24, 2017, places restrictions on entry to the United States from Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and Venezuela. The amicus brief argues that the new travel ban “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.” The Supreme Court will hear oral argument this Wednesday, April 25, 2018, with a decision expected to be released in late June.

The case arose when, on September 24, 2017, the Trump administration issued a new (third) travel ban after the first two Executive Orders were dismissed as moot. The third ban, Presidential Proclamation 9645 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats), placed entry restrictions on individuals traveling to the United States from eight countries. The state of Hawaii and others challenged the latest order, arguing that it violated both federal law and the US Constitution. On October 18 and 20, 2017, two federal district court judges, in Hawaii and Maryland, issued nationwide preliminary injunctions against enforcement of the new ban. The preliminary injunctions apply only to the six Muslim-majority countries named in the travel ban, but not to North Korea and Venezuela, which are also covered by the travel ban.

The Trump administration appealed the decision to the Supreme Court, arguing that by preventing the President from implementing the travel ban, the courts have restricted the executive’s ability to protect the nation, pointing to the possibility of inadequate information-sharing and deficient risk assessments from foreign nations.

The Supreme Court will consider four questions raised in Trump v. Hawaii: Can the courts even review this challenge? Has the President overstepped his authority over immigration in issuing the September 24 order? Was the lower court’s ruling overbroad; and Does the September 24 order violate the Establishment Clause?

The brief joined by AAUP explained that “amici share a strong interest in ensuring that people from around the world, including the eight countries identified in the challenged Presidential Proclamation, are not barred or deterred from entering the United States and contributing to American colleges and universities.” The amicus brief argues that “foreign students, faculty and researchers come to this country because our institutions are rightly perceived as the destinations of choice compared to all others around the globe.” The most recent proclamation, together with the first two travel ban executive orders, “altered those positive perceptions with the stroke of a pen.” Its “clarion message of exclusion” says that “America’s doors are no longer open to foreign students, scholars, lecturers, and researchers.”

The brief concludes, “American colleges and universities ‘have a mission of “global engagement” and rely on . . . visiting students, scholars, and faculty to advance their educational goals.’ That vital mission cannot be achieved if American immigration policy no longer sends a welcoming message to the members of the international community who wish to enter our campus gates. As explained above, the Proclamation jeopardizes the many contributions that foreign students, scholars, and researchers make to American colleges and universities, as well as our nation’s economic and general well-being.”

The following is the text of the brief’s summary of argument:

American colleges and universities are part of a worldwide network of learning, research, and education. Together, amici’s members enroll millions of students from all over the United States and the world in undergraduate, graduate, and professional degree programs. Many have gone on to invent groundbreaking technology, start thriving businesses, and assume leadership roles in governments and other organizations, both in this country and abroad. Amici’s members also employ faculty and researchers from around the globe. These international scholars routinely publish pioneering peer-reviewed work in virtually all fields of knowledge. As ACE’s former president recognized last year, the “roughly one million international students that  attend  U.S. colleges and universities add to this country’s intellectual and cultural vibrancy, and they also yield an estimated economic impact of $32.8 billion and support 400,000 U.S. jobs, according to recent estimates. International students and scholars have served America well throughout our history .”

The September 24, 2017 Presidential Proclamation (“Proclamation”) puts those benefits at risk. The Proclamation, which follows two executive orders (“EO-1” and “EO-2”) that imposed temporary bans on entry into the United States of nationals from several majority-Muslim countries, now indefinitely suspends immigration from eight countries. The Proclamation sends a clarion message of exclusion to millions around the globe that America’s doors are no longer open to foreign students, scholars, lecturers, and researchers.

By tripling-down on EO-l’s and E0-2’s exclusionary message, the Proclamation directly threatens amici’s ability to attract the international students and scholars who are essential to the success of American educational institutions. Foreign students, faculty and researchers come to this country because our institutions are rightly perceived as the destinations  of choice compared to all others around the globe. The Proclamation, like E0-1 and E0-2, altered those positive perceptions with the stroke of a pen.

Regrettably, those changed perceptions quickly gave rise to new realities. The  Proclamation continues to cause a range of adverse consequences for American institutions of higher education. Prospective students still express serious concerns about attending American colleges and universities. To take just one example, Faraj Aljarih, a Libyan national who was pursuing a master’s degree at Washington State University at the time E0-1 went into effect, was hoping to stay at WSU to pursue his Ph.D. Now, even though the Proclamation allows Libyans to come to the United States on nonimmigrant student visas, Aljarih has decided not to apply to WSU: “[A]fter the ban came into effect, it would be hard to come back to WSU. The good news is that I got admitted to the Ph.D. program at the University of Ottawa, in Canada ” Similarly, faculty recruits from other countries have demurred from accepting teaching and research positions. And scholars based abroad have pulled out of academic conferences in the United States, either because they have been directly affected by these  entry suspensions or because they are concerned about the harmful impact on academic discourse and research worldwide.

It is essential that the United States maintain its deep commitment to ensuring the free flow of ideas and people that is critical to progress in a democratic society. The inquiry, innovation, and invention that take place every day within amici’s classrooms, libraries, and laboratories depend on the ability of scholars and students to travel to and from the United States. The Proclamation, however, severely undermines the ability of American colleges and universities to fulfill their commitment to serving their students, their communities, the United States, and the world through innovative teaching and research. That commitment relies on maintaining a consistent pipeline of the most talented international students and scholars, who bring with them unique skills and perspectives that inure to the benefit of their classmates, colleagues, and the communities, small and large, served by amici’s member institutions.

Make no mistake, amici and their members are firmly committed to the security of their members’ campuses and of the United States. Each member college and university places the highest priority on the safety of its students and scholars, and recognizes that security is essential to maintaining a productive learning environment. As one amicus has emphasized, our colleges and universities “have long-shared the goal of protecting our country from those seeking to do us harm and … stand ready to help the administration ensure national security in  ways that do not undermine our nation’s status as the top destination for global talent.”

But the Proclamation jeopardizes the vital contributions made by foreign students, scholars, and faculty by telling the world in the starkest terms that America is no longer receptive to them. Amici therefore submit this brief to provide information to this Court about the serious negative effects that the Proclamation has had, and will continue to have, on American institutions of higher education.

Like this Court, amici appreciate that “[i]mmigration policy shapes the destiny of the Nation…. The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.” Arizona v. United States, 567 U.S. 387, 415-16 (2012). Amici’s member universities know this better than most, as they witness the indelible positive contributions that international students and faculty add to their academic communities every day. American colleges and universities wish to make clear to this Court that the Proclamation’s unwelcoming message will impair the cross-border exchange of people and ideas that is critical to their success-and their ability to contribute to the success of the country as a whole.

In addition to the American Council on Education and the AAUP, the following organizations joined the brief: Association of American Universities (AAU); Accreditation Council for Pharmacy Education (ACPE); ACT; American Association of Collegiate Registrars and Admissions Officers (AACRAO); American Association of Community Colleges (AACC); American Association of State Colleges and Universities (AASCU); American Indian Higher Education Consortium (AIHEC); American Speech-Language-Hearing Association (ASHA); Association of American Colleges and Universities (AAC&U); Association of American Law Schools (AALS); Association of Catholic Colleges and Universities (ACCU); Association of Governing Boards of Universities and Colleges (AGB); Association of Jesuit Colleges and Universities (AJCU); Association of Public and Land-grant Universities (APLU); Association of Research Libraries (ARL); College and University Professional Association for Human Resources  (CUPA­ HR); Council for Advancement and Support of Education (CASE); Council of Graduate Schools (CGS); Council of Independent Colleges (CIC); Council on Social Work Education (CSWE); Educational  Testing  Service (ETS); EDUCAUSE; Graduate Management Admissions Council (GMAC); Hispanic Association of Colleges and Universities (HACU); Law School Admission Council (LSAC); NAFSA: Association of International Educators; Student  Affairs  Administrators   in Higher Education (NASPA); National Association for College Admission Counseling (NACAC); National Association of College and University Business Officers (NACUBO); National  Association  of   Diversity Officers in Higher  Education  (NADOHE); National Association of Independent Colleges and Universities (NAICU).