By: Claire Graham, Summer Intern
July 8, 2020, MIT and Harvard filed a joint suit against ICE and the US Department of Homeland Security in the Massachusetts federal court to stop the Department of Homeland Security from reversing their earlier policy of flexibility around online classes during the pandemic. Did the plaintiffs have a right to sue on a mere Broadcast Message telling stakeholders about the rule to be published in the future?
On July 6, 2020, the Student and Exchange Visitor Program (SEVP) announced their intention to reverse temporary exemptions for foreign students in the United States in a Broadcast Message. The exemptions allowed student F-1 or M-1 visa holders who were attending schools operating entirely online to remain in the United States, despite the usual rule that classes needed to be mostly online. The Broadcast Message blindsided many schools as they had already decided to go fully-online or mostly online in fall 2020 for the safety of their faculty and students. This included Harvard University and the Massachusetts Institute of Technology (MIT), as well as universities and community colleges across the country.
July 8, 2020, MIT and Harvard filed a joint suit against ICE and the US Department of Homeland Security in the Massachusetts federal court to stop SEVP from reversing their earlier policy of flexibility around online classes. The next day, the Attorney General Xavier Becerra sued the US Department of Homeland Security et al. on behalf of the State of California and its community colleges and state universities in federal court in the northern district of California.
All controversies brought before US federal courts under the Federal Rules of Civil Procedure must be brought when they are "ripe" for judicial action. Ripeness allows the court to act in a timely manner and adds to its subject matter jurisdiction. Both plaintiffs in the Broadcast Message cases claimed subject matter jurisdiction under 5 US Code Section 702: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Agency action refers to “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Even though the Broadcast Message was not a final rule or agency regulation, since the definition of agency action includes any relief given by an agency or failure to act or give that relief, the definition appears broad enough to encompass the Broadcast Message.
Despite Broadcast Message's title and initial stated intention to just be a "heads up" to provide additional time to facilitate the implementation of procedures that would be put in place after publication of a Temporary Final Rule in the Federal Register, this is not the content or effect of the Broadcast Message. The Broadcast Message orders specific actions on the part of the Designated School Officials (DSOs) to occur in rapid fire sequence: (1) DSOs are asked to let SEVP know whether their school would be (a) entirely online by July 15, or (b) a mix of online and in-person classes by August 1. (2) DSOs are asked to update each individual student’s SEVIS (student record system) record in only 21 days from the date of the message, by August 4, with a confirmation that their individual student program will not be entirely online. This is quite burdensome for large universities to take on in such a short period of time. Given the response to the Broadcast Message demanded by SEVP, this is clearly agency action. Harvard, MIT and the State of California did not file too soon to enjoin the agency action taken in the Broadcast Message. They have civil demands ripe for judicial response.
 See 8 CFR 214.2(f)(6)(i)(G).