Dive Brief:

• Harvard University and the Massachusetts Institute of Technology sued immigration officials Wednesday over their new policy forbidding international students from remaining in the U.S. if all of their classes are online this fall. 

• The colleges allege the decision means to force institutions to resume in-person classes for the fall term, which some have decided is unsafe given the ongoing health crisis. 

• This week, the White House pushed college leaders to reopen their campuses. President Donald Trump said he would pressure governors, accusing some of keeping campuses shut for political reasons. 

Dive Insight:

As confirmed coronavirus cases rise across the country, colleges have debated whether they can safely reopen campuses. Harvard and MIT are among the high-profile institutions that have decided to continue instruction mostly online into the fall term, citing potential health concerns.

This did not appeal to Trump, who in the last week has become a vocal proponent of schools resuming normal operations. He called out Harvard at a White House event Tuesday, deriding the university for taking the "easy way out" by maintaining online courses.  

On Monday, hours after Harvard announced its fall plans, U.S. Immigration and Customs Enforcement released its new directive barring international students from staying in the country if their colleges only offer online classes. If the pandemic intensified and colleges that initially opened needed to shift to online education, foreign students would need to leave the country or transfer to a school that still had face-to-face courses.

International students comprise about 6% of U.S. higher education enrollment and are often sought after because they tend to pay full tuition costs. 

ICE's rule was widely criticized. College leaders said the policy would uproot students, including some at the graduate level, many of whom had built lives in the U.S. Ongoing travel restrictions could also limit their ability to return to their home countries. Harvard President Lawrence Bacow said in a written statement to the campus Wednesday that the order's "cruelty (was) surpassed only by its recklessness."

"[I]f an institution pursues in-person or hybrid instruction this fall and a serious outbreak of COVID-19 occurs, the institution would face strong pressure not to switch to online instruction, as Harvard and others necessarily did this past March, because to do so would immediately place its international students in jeopardy," Bacow wrote.

Harvard and MIT's lawsuit, filed in the U.S. District Court of Massachusetts, seeks to block the policy, arguing it violates the Administrative Procedure Act, which governs the processes by which the federal government releases regulations. 

The decision puts the universities in an "untenable position" of proceeding with their "carefully calibrated" plans for the fall or reopening and risking the health of the campus while undermining their international populations, they wrote in the lawsuit. They note the order comes only weeks before the fall semester, which means foreign students may not be able to transfer on short notice. 

ICE did not immediately respond to a request for comment Wednesday. An FAQ on the directive states the Department of Homeland Security wanted to "maximize flexibility for students to continue their studies, while minimizing the risk of transmission of COVID-19 by not admitting students into the country who do not need to be present to attend classes in-person."

The lawsuit likely has merit, said Brendan Cantwell, associate professor and coordinator of Michigan State University's Higher, Adult, and Lifelong Education program. He said the order is "arbitrary, indifferent to health concerns and kind of insane," and that its ambiguity could spur fear among foreign students. 

Typical federal rules don't allow international students to take classes exclusively online, though the government waived those restrictions as the coronavirus took hold in the country, Cantwell said. Some colleges plan to switch to remote teaching partway through the term, he noted, adding that it is unclear whether international students would be forced to leave the country at that time. Colleges will have to verify the enrollment status of every student in order to comply with the order, but Cantwell doubts they — or even ICE — have the manpower to conduct such audits. 

He predicted more colleges, in conjunction with industry groups, would sue the administration.

"These lawsuits are predictable and make complete sense," Cantwell said. "(The order) puts such an administrative burden on universities."