Intl. Refugee Assistance v. Donald J. Trump

Filing 109

AMICUS CURIAE BRIEF by Colleges and Universities in electronic and paper format. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/20/2017. [1000194770] [17-2231, 17-2232, 17-2233, 17-2240] Lindsay Harrison [Entered: 11/17/2017 06:33 PM]

Nos. 17-2231, 17-2232, 17-2233, 17-2240

United States Court of Appeals
FOR THE

Fourth Circuit
_______________________
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, etc., et al.,
Plaintiffs-Appellees,
ALLAN HAKKY, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, etc., et al.,
Defendants-Appellants.
_______________________
On Appeal from the United States District Court, District of Maryland,
The Honorable Theodore D. Chuang, United States District Judge
Case No. 8:17-cv-00361-TDC
BRIEF OF AMICI CURIAE COLLEGES AND UNIVERSITIES
IN SUPPORT OF PLAINTIFFS-APPELLEES/CROSS-APPELLANTS
Thomas J. Perrelli
Lindsay C. Harrison
Tassity S. Johnson
Jenner & Block LLP
1099 New York Ave NW
Washington, DC 20001-4412
Phone: [phone]
Attorneys for Amici Colleges and Universities

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for amici
curiae Boston University, Brandeis University, Brown University, Bucknell
University, Carnegie Mellon University, Case Western Reserve University,
Columbia University, Cornell University, Dartmouth College, Duke University,
Emory University, George Washington University, Georgetown University,
Harvard University, Johns Hopkins University, Massachusetts Institute of
Technology,

Middlebury

College,

Northeastern

University,

Northwestern

University, Princeton University, Rice University, Stanford University, Tufts
University, University of Chicago, University of Michigan, University of
Pennsylvania,

University

of

Southern

California,

Vanderbilt

University,

Washington University, Worcester Polytechnic Institute, and Yale University
certifies that amici, respectively, are not publicly held corporations, that amici,
respectively, do not have a parent corporation, and that no publicly held corporation
owns 10 percent or more of amici’s respective stock.
Dated: November 17, 2017

By: /s/ Lindsay C. Harrison
Lindsay C. Harrison
Attorney for Amici
Colleges and Universities

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICI CURIAE ............................................................................... 1
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 7
I.

International Students, Faculty, and Scholars Are Vital to Amici, the
U.S., and the World. ........................................................................................ 7
A.
B.

International Students, Faculty, and Scholars Contribute
Significantly to Amici’s Campuses. .................................................... 15

C.
II.

Each Amicus Is Home to a Significant Percentage of Students,
Faculty, and Scholars Who Are Citizens of Other Nations. ................. 7

The Enrollment and Employment of International Students,
Faculty, and Scholars Benefit the U.S. and the World. ...................... 17

The Proclamation Harms Students, Faculty, Scholars, and
Universities. ................................................................................................... 21

CONCLUSION ........................................................................................................ 33

ii

TABLE OF AUTHORITIES
CASES
Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) .......................15, 16
Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................................... 16
International Refugee Assistance Project v. Trump, No. TDC-17-0361, __ F.
Supp. 3d __, 2017 WL 4674314 (D. Md. Oct. 17, 2017)................ 6-7, 30, 32
Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017) ......... 30
OTHER AUTHORITIES
American Association of Collegiate Registrars and Admissions Officers,
Treading Topics Survey: International Applicants for Fall 2017—
Institutional & Applicant Perceptions (Apr. 4, 2017),
http://www.aacrao.org/docs/default-source/TrendTopic/Immigration/
final-report.pdf?sfvrsn=0 ............................................................................... 24
American Immigration Council, Fact Sheet: The H-1B Visa Program: A
Primer on the Program and Its Impact on Jobs, Wages, and the
Economy (Apr. 1, 2016), https://www.americanimmigrationcouncil.
org/research/h1b-visa-program-fact-sheet ..................................................... 13
Stuart Anderson, Immigrants Flooding America with Nobel Prizes, Forbes
(Oct. 16, 2016, 10:48 AM), http://www.forbes.com/sites/
stuartanderson/2016/10/16/immigrants-flooding-america-with-nobelprizes/#3de213817f5f ..............................................................................18, 19
Stuart Anderson, Nat’l Found. for American Policy, Immigrants and Billion
Dollar
Startups,
http://nfap.com/wp-content/uploads/2016/03/
Immigrants-and-Billion-Dollar-Startups.NFAP-Policy-Brief.March2016.pdf ......................................................................................................... 18
Bureau of Consular Affairs, U.S. Dep’t of State, U.S. Visas: Temporary
Worker Visas, https://travel.state.gov/content/visas/en/employment/
temporary.html (last visited Nov. 13, 2017).................................................. 13

iii

Bureau of Consular Affairs, U.S. Dep’t of State, U.S. Visas: Visitor Visa,
https://travel.state.gov/content/visas/en/visit/visitor.html (last visited
Nov. 13, 2017) ............................................................................................... 14
Bureau of Educational and Cultural Affairs, U.S. Dep’t of State, J-1 Visa
Exchange
Visitor
Program,
About
the
J-2
Visa,
https://j1visa.state.gov/basics/j2-visa/ (last visited Nov. 13, 2017) .............. 12
Bureau of Educational and Cultural Affairs, U.S. Dep’t of State, J-1 Visa
Exchange Visitor Program, Common Questions - Basics,
https://j1visa.state.gov/basics/common-questions/ (last visited Nov. 13,
2017) .............................................................................................................. 12
Sara Custer, Open Doors: U.S. Surpasses 1 Million International Students,
The Pie News (Nov. 14, 2016), https://thepienews.com/news/opendoors-us-surpasses-1-million-international-students/ ...............................8, 17
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry
Into the United States by Terrorists or Other Public-Safety Threats,
Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) .............. 3, 4, 5
Executive Order No. 13,769, § 2(c), 82 Fed. Reg. 8,977 (Jan. 27, 2017) ................. 3
Executive Order No. 13,780 § 2(c), 82 Fed. Reg. 13,209 (Mar. 6, 2017) ................. 3
Larry Hardesty, Signal Intelligence, MIT Tech. Rev. (Oct. 20, 2015),
https://www.technologyreview.com/s/542131/signal-intelligence/ .............. 19
In

Solidarity with People Affected by the ‘Muslim Ban,’
https://docs.google.com/forms/d/e/1FAIpQLSeNN_2HHREt1hdm_CgWpFHw8NDPGLCkOwB4lLRFtKFJqI25w/viewform?c=0&w
=1&fbzx=2104368019732744200 (last visited Nov. 13, 2017) ................... 29

Joint Declaration of Madeline K. Albright, Avril D. Haines, Michael V.
Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael
J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice,
Washington v. Trump, No. 17-35105 (9th Cir. Feb. 6, 2017), ECF No.
28-2 ..........................................................................................................14, 17

iv

Molly Land & Kathryn Libal, Trump is Undermining Higher Education as a
Global Enterprise, The Chronicle of Higher Education (Jan. 31, 2017),
http://www.chronicle.com/article/Trump-Is-UnderminingHigher/239060 ................................................................................................. 8
NAFSA, NAFSA International Student Economic Value Tool,
http://www.nafsa.org/Policy_and_Advocacy/Policy_Resources/Policy
_Trends_and_Data/NAFSA_International_Student_Economic_Value_
Tool/ (last visited Nov. 13, 2017) .................................................................. 17
Adams Nager, et al., Information Technology & Innovation Found., The
Demographics of Innovation in the United States (Feb. 24, 2016),
https://itif.org/publications/2016/02/24/demographics-innovationunited-states ................................................................................................... 18
Shannon Najmabadi, Academics Mull Boycott of U.S. Conferences as a Way
of Fighting Travel Ban, The Chronicle of Higher Education (Jan. 30,
2017), http://www.chronicle.com/article/Academics-Mull-Boycott-ofUS/239047?cid=pm&utm_source=pm&utm_medium=en&elqTrackId
=e9a82fa115e24765bc019b2dfc9d480e&elq=ef21be06f46043e287aee
dd6a611eb6e&elqaid=12357&elqat=1&elqCampaignId=5023 ................... 28
Hironao Okahana, Data Sources: Admission Yields of Prospective
International Graduate Students: A First Look, http://cgsnet.org/datasources-admission-yields-prospective-international-graduate-studentsfirst-look (last accessed Nov. 13, 2017) ........................................................ 24
Chris Parr, Response: international universities speak out against Trump ban,
The
Times
Higher
Education
(Jan.
31,
2017),
https://www.timeshighereducation.com/blog/response-internationaluniversities-speak-out-against-trump-ban .........................................22, 23, 27
Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017),
https://www.insidehighered.com/news/2017/01/31/protest-trumpentry-ban-some-scholars-areboycotting-us-based-conferences .............. 28-29
Katie Rose Quandt, Meet the First Woman to Win the “Nobel Prize of
Mathematics,”
Mother
Jones
(Aug.
14,
2014),
http://m.motherjones.com/mixed-media/2014/08/maryam-mirzakhanifirst-woman-fields-medal-mathematics ......................................................... 19

v

Omer Taspinar, The Problem With Radicalism, 19 Cairo Rev. 76 (2015) .............. 20
U.S. Customs & Immigration Services, Optional Practical Training (OPT)
for
F-1
Students
(last
updated
Feb.
1,
2017),
https://www.uscis.gov/working-united-states/students-and-exchangevisitors/students-and-employment/optional-practical-training ..................... 10

vi

INTEREST OF AMICI CURIAE1
Amici are Boston University, Brandeis University, Brown University,
Bucknell University, Carnegie Mellon University, Case Western Reserve
University, Columbia University, Cornell University, Dartmouth College, Duke
University, Emory University, George Washington University, Georgetown
University, Harvard University, Johns Hopkins University, Massachusetts Institute
of Technology, Middlebury College, Northeastern University, Northwestern
University, Princeton University, Rice University, Stanford University, Tufts
University, University of Chicago, University of Michigan, University of
Pennsylvania,

University

of

Southern

California,

Vanderbilt

University,

Washington University, Worcester Polytechnic Institute, and Yale University.
Though amici are located in the United States, their missions and reach are
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.
These individuals make significant contributions to their fields of study and to
campus life by bringing their unique perspectives and talents to amici’s classrooms,

1

No counsel for a party authored this brief in whole or in part, and no person, other
than amici or their counsel, made any monetary contribution intended to fund this
brief. The parties have consented to the filing of this brief.
1

laboratories, and performance spaces. They also contribute by making scientific
discoveries, starting businesses, and creating literature and art, all of which redound
to the benefit of others far beyond amici’s campuses. So too, by studying and
engaging with other scholars in the U.S., these individuals gain a greater
understanding of and appreciation for the values we hold dear, including democratic
principles and respect for the rule of law, tolerance, and human rights—values which
they may then share with citizens of their home countries.
Recognizing the invaluable contributions of international students, faculty,
and scholars, amici make significant efforts to attract the most talented individuals
from around the globe and to engage persons around the world through international
campuses and programs. In light of their educational missions, amici are deeply
interested in ensuring that individuals from around the globe can continue to enter
the U.S. and share their unique skills and perspectives.

Amici recognize the

imperative need for the government to protect national security, but students and
scholars already undergo significant scrutiny on an individual basis to study or work
here. Amici therefore submit this brief in support of Appellees on the merits of the
government’s appeal regarding the district court’s preliminary injunction.
SUMMARY OF ARGUMENT
American colleges and universities have long recognized the importance of
attracting international students, faculty, staff, and scholars. International scholars
2

and faculty share important insights about conditions, traditions, and cultural values
and practices in their nations. Their work leads to critical advancements across all
disciplines, from science and technology to arts and letters, often through crossborder collaborations that enhance their teaching and research.

International

students study here and return home as leaders in business, medicine, politics, and
other fields. The benefits of international diversity in American higher education
thus inure not only to colleges and universities themselves, but to the country and
indeed the world as a whole.
The third in a series of presidential orders banning entry into the U.S. of
nationals of Muslim-majority countries, Presidential Proclamation No. 9645, like its
predecessors, impairs amici’s ability to attract talented individuals from around the
globe and thus to meet their goals of educating tomorrow’s leaders. See 82 Fed.
Reg. 45,161 (Sept. 24, 2017) [hereinafter “Proclamation”]. Unlike the temporary
bans of its predecessors, however, the Proclamation indefinitely bars or otherwise
restricts entry of all immigrants and most non-immigrants from Chad, Iran, Libya,
Somalia, Syria, and Yemen.2 Proclamation § 2.

2

The predecessor travel bans suspended entry of nationals from all of these countries
except Chad; they also suspended entry of nationals from Sudan, which the
Proclamation does not. See Executive Order No. 13,769, § 2(c), 82 Fed. Reg. 8,977
(Jan. 27, 2017); Executive Order No. 13,780 § 2(c), 82 Fed. Reg. 13,209 (Mar. 6,
2017). In addition, the Proclamation suspends entry of all North Korean nationals,
limits entry of certain Venezuelan government officials and their immediate family
3

The Proclamation permanently interferes with the entry of nationals from the
six Muslim-majority countries who seek the categories of visas most commonly
relied upon by amici’s international students, faculty, staff, and scholars. It excludes
all Syrian nationals, preventing amici from recruiting promising students, faculty,
staff, and scholars and jeopardizing the education and careers of Syrian nationals
who are currently enrolled at or employed by amici on visas that will need to be
renewed. Id. § 2(e)(ii). For Iranian nationals, it suspends all nonimmigrant visas,
with the exception of student and exchange visas, throwing amici’s recruitment
efforts of prospective Iranian faculty and staff, and the careers of Iranian nationals
currently employed by amici, into similar jeopardy. Id. § 2(b)(ii). It also suspends
travel and business visas for nationals of Chad, Iran, Libya, and Yemen, inhibiting
amici from interviewing prospective faculty from these countries in person,
recruiting prospective students from these countries through campus visits,
collaborating with researchers from these countries at conferences, and inviting
world-renowned scholars from these countries to speak. Id. §§ 2(a)(ii), (b)(ii),
(c)(ii), (g)(ii).

members, and subjects all other Venezuelan nationals to enhanced screening.
Proclamation §§ 2(d), (f). These sections of the Proclamation are not subject to the
district court’s injunction.
4

Despite the extensive individualized vetting a person already must undergo to
secure a visa to study here, the Proclamation imposes additional but unspecified
“enhanced screening and vetting” on students and scholars from Iran, and students,
scholars, or faculty from Somalia. Id. §§ 2(b)(ii), (h)(ii). This additional scrutiny
may mean that many otherwise qualified students and scholars will not be able to
obtain visas, and it all but ensures that others will be deterred from applying. Amici
moreover risk losing current students, faculty, and scholars from the targeted
Muslim-majority countries because their family members who remain in those
countries will never be able to visit on travel visas or join them here on immigrant
visas. Id. § 2.
The Proclamation threatens amici’s ability to attract persons not only from the
six specified countries, but from around the world. It contradicts the values that
American colleges and universities have traditionally touted as benefits of studying
and working here, including the freedom of religion and equality embodied in the
First and Fourteenth Amendments. Indeed, large groups of scholars have threatened
to boycott meetings and conferences hosted in the U.S. because of the travel ban.
Universities in other countries have used the predecessor travel bans, and the
arbitrariness and unpredictability that the bans have introduced into this country’s
immigration policy, to recruit international students, faculty, and scholars away from
U.S. institutions. The Proclamation only strengthens these appeals.
5

Amici have already felt some of the predecessor travel bans’ damaging effects,
and the Proclamation promises to exacerbate these harms. International scholars and
faculty advised many of amici that they could not accept invitations to work and
teach here given the uncertainty surrounding the predecessor travel bans. The
Proclamation has removed all doubt that scholars and faculty from Syria cannot
work and teach at amici, and that persons from the other targeted countries will face
an uphill battle to do so, a battle in which victory may mean permanent separation
from their families. Likewise, the predecessor bans deterred students from applying
to and studying at American universities.

And, if permitted to stand, the

Proclamation will discourage many prospective international students from applying
to American colleges and universities during future application cycles. Even worse,
amici have been harmed by the predecessor travel bans and the Proclamation without
any evidence that an appreciable number of nationals from these countries—all of
whom the government already vets before permitting them to study or work here—
pose any safety or security threat. Upholding the Proclamation will telegraph to all
countries that their citizens may be unjustly targeted for exclusion, worsening the
Proclamation’s negative effects.
Amici support the injunction of Section 2 of the Proclamation as applied to all
visa applicants, and believe the injunction should not be limited only to individuals
“who have a credible claim of bona fide relationship with a person or entity in the
6

United States.” Int’l Refugee Assistance Project v. Trump, Civil Action Nos. TDC17-0361, TDC-17-2921, TDC-17-2969, __ F. Supp. 3d __, 2017 WL 4674314, at
*39 (D. Md. Oct. 17, 2017) (quoting Trump v. Int’l Refugee Assistance Project, 137
S. Ct. 2080, 2088 (2017) (per curiam)). The harms of the Proclamation to amici are
not cured by limiting its scope to only those lacking such a “bona fide” relationship.
Because the Proclamation both harms American higher education and offends
important, defining principles of our country, amici respectfully submit this brief in
support of Plaintiffs-Appellees/Cross-Appellants.
ARGUMENT
I.

International Students, Faculty, and Scholars Are Vital to Amici, the U.S.,
and the World.
Amici’s ability to foster rich educational environments depends in part on their

ability to attract students, faculty, and scholars from around the globe.

The

international members of amici’s communities contribute to the vibrant campus life,
world-class educational offerings, and research discoveries for which amici are
known. These contributions redound to the benefit of all members of amici’s
campus communities, the U.S., and the world.
A. Each Amicus Is Home to a Significant Percentage of Students,
Faculty, and Scholars Who Are Citizens of Other Nations.
Amici are firmly committed to attracting the most exceptional individuals
from all nations. In the 2015–16 academic year, U.S. universities welcomed more
7

than one million international students.3 Amici’s campuses reflect this trend. Each
is home to a significant percentage of international students, faculty, and scholars—
including many nationals of the six countries affected by the Proclamation. This
international presence is true across amici’s campuses even though amici vary in
size, location, and focus.
For example, in fall 2016, Columbia University enrolled 1,416 international
undergraduates (16% of Columbia’s undergraduate population) and 7,571
international graduate and professional students (38.7% of its graduate/professional
students). USC had 10,571 international students—24.1% of its student body—
enrolled in fall 2016. At Duke, in fall 2016, 27% of the student population was
international, including 13% of the undergraduate students, and 38% of the graduate
students. The University of Pennsylvania’s numbers are similar: 4,859 international
students were enrolled in fall 2016, including 13% of the incoming freshmen and
more than 25% of graduate students. As of October 2016, Stanford enrolled 4,164
international students, comprising 24% of the student population. In fall 2016, 6,764

3

Sara Custer, Open Doors: U.S. Surpasses 1 Million International Students, The Pie
News (Nov. 14, 2016), https://thepienews.com/news/open-doors-us-surpasses-1million-international-students/; see also Molly Land & Kathryn Libal, Trump is
Undermining Higher Education as a Global Enterprise, The Chronicle of Higher
Education (Jan. 31, 2017), http://www.chronicle.com/article/Trump-IsUndermining-Higher/239060.
8

international students were enrolled at the University of Michigan, comprising 15%
of its student population.
Amici also benefit from the contributions of international faculty and scholars.
More than 40% of MIT’s faculty is international. At Princeton, approximately 30%
of faculty appointees, 50% of academic professionals (professional researchers,
specialists, librarians, and postdoctoral fellows), and 50% of visiting faculty and
researchers are international (including lawful permanent residents). The University
of Chicago counts as international (including lawful permanent residents) 24% of its
faculty and other academic appointees, as well as 63% of its postdoctoral researchers
and 10% of its staff members. At Cornell, 5.1% of faculty are international, as are
26.4% of other academic employees and post-doctorates. Yale’s faculty is 10%
international, as is approximately 65% of its postdoctoral research community. In
fall 2016, Northwestern was home to 1,534 international scholars, in positions from
postdoctoral scholars to researchers and faculty. Thirty-four percent of Emory’s 944
full-time research staff are nonresident aliens.
Amici’s international students, faculty, and scholars include persons from the
six countries affected by the Proclamation. USC had 168 students from Iran alone
enrolled in fall 2016. Princeton has more than 50 students and employees from the
six affected countries, and its graduate school received approximately 150
applications for fall 2017 (and more than 700 applications in the past five years)
9

from students from those nations. Over the past three years, Rice has hosted between
32 and 35 students from the six affected countries and received more than 600
applications from undergraduate and graduate students from those countries. Brown
has more than 20 students and scholars from the countries affected by the
Proclamation. The University of Chicago has 22 students from Iran, as well as two
students from Syria and two recent graduates from Iran who are employed under
Optional Practical Training (OPT) and University sponsorship.4

In the past

academic year, Northwestern was home to 45 students and 22 scholars from Iran, as
well as two students from Syria and one from Yemen, and extended offers of
admission for the current academic year to at least 16 prospective students affected
by the Proclamation. Carnegie Mellon has 31 students and 10 faculty and scholars
from the six affected countries at its U.S. locations. WPI has 32 undergraduate and
graduate students and 29 faculty and scholars from the affected countries. Harvard
counts 45 students and 63 scholars from the six affected countries who are present
on nonimmigrant visas, along with 77 dependents from those countries, and has
admitted 23 students from those countries for fall 2017. MIT currently has 58 degree

4

“Optional Practical Training (OPT) is temporary employment that is directly
related to an F-1 student’s major area of study.” U.S. Customs & Immigration
Services, Optional Practical Training (OPT) for F-1 Students (last updated Feb. 1,
2017),
https://www.uscis.gov/working-united-states/students-and-exchangevisitors/students-and-employment/optional-practical-training.
10

and non-degree students, 53 scholars, and 6 recent graduates on OPT from the six
affected countries. Emory hosts 40 faculty members and scholars from those
countries. Twenty of Boston University’s faculty and scholars are from two of the
six countries. Tufts hosts 18 faculty and scholars from the affected countries. These
are just a few of the universities where persons from the affected countries make
invaluable contributions to amici’s communities.
The international presence at amici’s campuses is no accident. Amici have
invested significant time and resources to attract international students, faculty, and
scholars. For example, amici have established many programs and centers focused
on specific subjects like archaeology and the ancient world, including the Joukowsky
Institute for Archaeology and the Ancient World at Brown and the University of
Chicago’s Oriental Institute for the study of ancient Near Eastern civilizations;
schools dedicated to international relations like the School of International and
Public Affairs at Columbia; residential communities focusing on cross-cultural
collaboration like the Global Village at Dartmouth; and centers that serve as the focal
point for international students, faculty, and scholars, like the Davis International
Center and Mamdouha S. Bobst Center for Peace and Justice at Princeton, the
Bechtel International Center at Stanford, the McDonnell International Scholars
Academy at Washington University, and the World Fellows Program, Jackson
Institute for Global Affairs, and MacMillan Center for International and Area
11

Studies at Yale. Other programs focus on educating foreign ministers, including
those from the six countries affected by the Proclamation. For example, Harvard
Kennedy School and Harvard’s T.H. Chan School of Public Health offer an annual
Harvard Ministerial Leadership Program, in which ten to twelve serving education,
health, and finance ministers are invited to a rigorous summer course in Cambridge
for leadership enhancement.
The success of these centers, programs, and offerings—and the success of
amici in more generally attracting persons from around the world—depends on U.S.
immigration policies. Many international students, faculty, and scholars are present
on J-1 visas. This longstanding program is administered by the State Department to
“foster[] global understanding through educational and cultural exchanges.”5
Indeed, the State Department’s website expressly instructs J-1 visa recipients to
“return to their home country…to share their exchange experiences.”6 As discussed
below, many do—and the U.S. and the world reap wide-ranging benefits from their

5

Bureau of Educ. and Cultural Affairs, U.S. Dep’t of State, J-1 Visa Exchange
Visitor
Program,
Common
Questions
Basics,
https://j1visa.state.gov/basics/common-questions/ (last visited Nov. 13, 2017).
6

Id. The importance of the J-1 Visa Program is underscored by the existence of J-2
visas, which permit “spouses and dependents . . . of J-1 exchange visitors [to]
accompany or later join the J-1 holder in the United States.” Bureau of Educational
and Cultural Affairs, U.S. Dep’t of State, J-1 Visa Exchange Visitor Program, About
the J-2 Visa, https://j1visa.state.gov/basics/j2-visa/ (last visited Nov. 13, 2017).
12

return, including advances in medicine and science, progress toward equal treatment
of women and religious minorities, and respect for democracy and the rule of law.
The U.S. offers other types of visas to international students, faculty, and
scholars as well. Many students attending full-time degree programs rely on F-1
visas, which allow them to remain in the U.S. for as long as it takes to complete their
courses of study. And some university faculty, research scholars, and staff hold H1B visas, which allow U.S. employers to fill gaps in the existing labor force with
highly-skilled, temporary workers from other countries. A significant number of
researchers are employed through H-1B visas, most notably for positions in
technology and the sciences.7 Some universities also use the O-1 visa program,
which enables professors or researchers with extraordinary demonstrated ability in
the arts, sciences, education, business, or athletics to enter the U.S. temporarily to
work in their specified field.8 Prospective students who wish to visit college

7

See, e.g., American Immigration Council, Fact Sheet: The H-1B Visa Program: A
Primer on the Program and Its Impact on Jobs, Wages, and the Economy (Apr. 1,
2016), https://www.americanimmigrationcouncil.org/research/h1b-visa-programfact-sheet (reporting that “the presence of research universities accounts for H-1B
demand” in many metro areas, and that “[n]early two-thirds of requests for H-1B
workers are for STEM occupations. There is also high demand for workers in
healthcare, business, finance, and life sciences industries.”).
8

Bureau of Consular Affairs, U.S. Dep’t of State, U.S. Visas: Temporary Worker
Visas, https://travel.state.gov/content/visas/en/employment/temporary.html (last
visited Nov. 13, 2017).
13

campuses before deciding where to attend, prospective faculty and staff invited to
in-person job interviews, and scholars who wish to attend conferences in their fields
or to speak at university events may do so on B-1, B-2, or B-1/B-2 visas for business
and travel.9
Through these visa programs, the many international students, faculty, and
scholars at amici’s campuses are thoroughly vetted by the U.S. using existing
procedures.10 Amici must be able to assure current and prospective international
students, faculty, and scholars that once they have been cleared through standard
vetting procedures, they may enter the U.S. to pursue their studies and scholarship.
Amici’s ability to fully accomplish their educational missions thus necessarily
depends on clear, consistent, predictable, and nondiscriminatory application of
American immigration policies.

9

Bureau of Consular Affairs, U.S. Dep’t of State, U.S. Visas: Visitor Visa,
https://travel.state.gov/content/visas/en/visit/visitor.html (last visited Nov. 13,
2017).
10

Joint Decl. of Madeline K. Albright, Avril D. Haines, Michael V. Hayden, John
F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A.
Napolitano, Leon E. Panetta, and Susan E. Rice ¶ 6, Washington v. Trump, No. 1735105 (9th Cir. Feb. 6, 2017), ECF No. 28-2 (hereinafter “Government Officials
Declaration”).
14

B.

International Students, Faculty,
Significantly to Amici’s Campuses.

and

Scholars

Contribute

International students, faculty, and scholars make substantial contributions to
amici’s campuses. International diversity benefits amici by facilitating regular
interactions between individuals from different cultures with varied life experiences:
a Muslim student from Iran brings something different to the seminar table than a
Jewish professor from the Midwestern U.S. or a Christian graduate student from
Western Europe. This diversity promotes the free exchange of ideas, encouraging
individuals to consider issues from a multiplicity of perspectives and giving students
and faculty a greater understanding of our global, pluralistic society. Moreover,
when individuals from different backgrounds live and study together on the same
campus, the resulting diversity increases understanding of all parts of the world.
The Supreme Court acknowledged these benefits when it held that universities
have a compelling interest in obtaining the “educational benefits that flow from
student body diversity.” Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2419
(2013) (quoting Grutter v. Bollinger, 539 U.S. 306, 330 (2003)). “The academic
mission of a university is a special concern of the First Amendment,” and “[p]art of
the business of a university [is] to provide that atmosphere which is most conducive
to speculation, experiment, and creation.” Id. at 2418 (internal quotation marks
omitted; second bracket in original). A diverse student body contributes to this

15

atmosphere by fostering “enhanced classroom dialogue” and “lessening . . . isolation
and stereotypes.” Id. Accordingly, the Court has recognized that to “fulfill[] [their]
mission[s],” universities must be able to recruit students (and, by extension, faculty
and scholars) who will “contribute the most to the robust exchange of ideas.”
Grutter v. Bollinger, 539 U.S. 306, 324 (2003) (quoting Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 313 (1978)).
International diversity is uniquely valuable. For many of amici’s students,
enrollment in the university will be their first exposure to persons from other nations
or religious backgrounds. Such exposure enriches students’ experiences and teaches
them how to collaborate across ethnic and religious differences in a world that is
fundamentally interconnected.

Moreover, international students, faculty, and

scholars provide particular insight into the world’s current problems and potential
solutions. A Syrian student who has lived through the country’s ongoing civil war
necessarily will have an important perspective on the causes of that conflict and on
how the rest of the world might help alleviate it. These opportunities for crosscultural understanding are integral to amici’s ability to provide some of the best
educational programs in the world.
International students, faculty, and scholars also contribute to amici’s
campuses through their academic interests and achievements. For example, many
study, teach, and research in fields that are underpopulated by American-born
16

students, faculty, and scholars, such as STEM fields. By one account, more than one
third of international students during the 2015–16 year studied engineering, math, or
computer science, and “many” of the 14% who participated in F-1 OPT worked in
STEM fields.11 Encouraging international students and faculty to study and work at
amici universities is particularly important given the pressing need for scholarship
and research in these fields.
C.

The Enrollment and Employment of International Students, Faculty,
and Scholars Benefit the U.S. and the World.

International students, faculty, and scholars make significant scientific,
technological, social, and political contributions to the U.S. and the world.
To begin, international students make significant contributions to the U.S.
economy. One estimate provides that international students directly contributed
$32.8 billion to the U.S. economy and supported or contributed to the creation of
400,000 American jobs in the 2015–16 academic year;12 others suggest that
international students “inject hundreds of billions into the U.S. economy” and
“support[] well over a million U.S. jobs.”13

11

Sara Custer, Open Doors, supra note 3.

12

NAFSA, NAFSA International Student
Economic
Value
Tool,
http://www.nafsa.org/Policy_and_Advocacy/Policy_Resources/Policy_Trends_and
_Data/NAFSA_International_Student_Economic_Value_Tool/ (last visited Nov.
13, 2017).
13

Government Officials Declaration ¶ 5(g).
17

In addition, many international students choose to remain in the U.S. and
become leading innovators, entrepreneurs, artists, and thought-leaders. One study
found that more than one third of U.S. innovators were born outside the country, and
another ten percent have at least one foreign-born parent.14 Another analysis found
that “[i]mmigrants have started more than one half (44 of 87) of America’s startup
companies valued at $1 billion dollars or more and are key members of management
or product development teams in over 70 percent (62 of 87) of these companies.”15
The benefits from this international presence at American universities are not
just economic. These individuals make significant discoveries and contributions in
their fields. Since 2000, forty percent of all American Nobel prize winners in
Chemistry, Medicine, and Physics have been immigrants—and in 2016, all six
American winners of the Nobel Prize in economics and scientific fields were
foreign-born.16 These awards “represent great individual achievement but also

14

Adams Nager, et al., Information Technology & Innovation Found., The
Demographics of Innovation in the United States (Feb. 24, 2016),
https://itif.org/publications/2016/02/24/demographics-innovation-united-states.
15

Stuart Anderson, Nat’l Found. for American Policy, Immigrants and Billion
Dollar Startups, http://nfap.com/wp-content/uploads/2016/03/Immigrants-andBillion-Dollar-Startups.NFAP-Policy-Brief.March-2016.pdf.
16

Stuart Anderson, Immigrants Flooding America with Nobel Prizes, Forbes (Oct.
16,
2016,
10:48
AM),
http://www.forbes.com/sites/stuartanderson/2016/10/16/immigrants-floodingamerica-with-nobel-prizes/#3de213817f5f.
18

reflect the state of research, openness and scientific advancement within [American]
society.”17
Amici have seen these successes up close.

In 2014, the late Maryam

Mirzakhani was the first woman to win the Fields Medal, known as the “Nobel Prize
of Mathematics.” Mirzakhani grew up in Iran before earning her Ph.D. at Harvard
and becoming a professor at Princeton and then Stanford.18 Professor Muawia
Barazangi came to the U.S. from Syria for graduate study after earning his
undergraduate degree from the University of Damascus; he earned a Ph.D. from
Columbia before joining the faculty at Cornell, where he became a U.S. citizen and
had a long and distinguished research and teaching career in the field of Earth
Sciences. Syrian-born Dina Katabi, a professor at MIT, came to the U.S. for
graduate study at MIT, and has since won a Macarthur “Genius” grant for her work
on improving wireless network efficiency and security.19
Education and employment at leading American universities also provide
opportunities for individuals to experience life in the U.S. and gain a greater

17

Id.

18

See Katie Rose Quandt, Meet the First Woman to Win the “Nobel Prize of
Mathematics,” Mother Jones (Aug. 14, 2014), http://m.motherjones.com/mixedmedia/2014/08/maryam-mirzakhani-first-woman-fields-medal-mathematics.
19

Larry Hardesty, Signal Intelligence, MIT Tech. Rev. (Oct. 20, 2015),
https://www.technologyreview.com/s/542131/signal-intelligence/.
19

appreciation for American social and political norms and ideas. Individuals return
to their home countries with a deeper understanding of and appreciation for the U.S.
and its values—and, hopefully, a greater desire to engage in continuing discourse
and exchange. They also return home with the tools necessary to improve conditions
on the ground, such as through public health initiatives and good governance. This,
in turn, promotes the economies of developing nations, and may stymie
radicalization.20
International students, faculty, and scholars become leaders in their home
countries.

Yale counts among its distinguished alumni many foreign leaders,

including Valdis Zatlers, former President of Latvia, and Abd al-Karim al-Iryani,
former Prime Minister of the Republic of Yemen. Alumni from MIT include
Benjamin Netanyahu, Prime Minister of Israel; Kofi Annan, former SecretaryGeneral of the United Nations; and Lucas Papademos, former Prime Minister of
Greece. World leaders educated at Harvard include current Liberian President Ellen
Johnson-Sirleaf (Africa’s first elected female President) and former Prime Minister
of Pakistan Benazir Bhutto. And Georgetown counts among its alumni many foreign
leaders, including Abdullah II bin al-Hussein, the King of Jordan; José Manuel
20

See, e.g., Omer Taspinar, The Problem With Radicalism, 19 Cairo Rev. 76, 80
(2015) (noting that “[a]n agenda based on human development with equal emphasis
on education reform, democratic reforms, and socioeconomic advancement can
address the ideological as well as economic root causes of radicalization.”).
20

Barroso, former President of the European Commission; Saad Hariri, former Prime
Minister of Lebanon; and Nasser Judeh, former Deputy Prime Minister and Minister
of Foreign Affairs of Jordan.
II.

The Proclamation Harms Students, Faculty, Scholars, and Universities.
The Proclamation has serious and chilling implications for amici’s students,

faculty, and scholars. It separates current students from their families, impairs the
ability of American universities to draw the finest international talent, and inhibits
the free exchange of ideas. It is imperative to amici that the Court consider these
and other detrimental effects of the Proclamation.
First, the Proclamation hurts American universities by prohibiting or
deterring international students, faculty, and scholars from studying here. Amici,
like other American universities, aim to attract talented students, faculty, and
scholars from around the globe. The Proclamation hampers amici’s ability to do so
by arbitrarily and indefinitely banning or unduly burdening the entry of persons from
six majority-Muslim countries and contemplating further categorical entry bans
based on national origin. The exclusion of those persons diminishes the experience
of studying at amici universities for everyone, and as the effects of the predecessor
bans demonstrate, inevitably will deter persons from other countries from choosing
to study or work here.

21

Reducing the international presence on amici’s campuses will detract from the
academic experience for those who do study in this country. As amici have
explained, the benefits of international diversity to American universities are
manifold. And it is not merely the classroom experience that will suffer. The
success of American laboratories, a major driver of our economy, depends on their
ability to attract the best trainees and postdoctoral fellows wherever they may be
found, and on their ability to collaborate with foreign scientists. The Proclamation
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 predecessor Orders and touting their own opportunities for
international students and scholars.21 Regarding the first iteration of the travel ban,
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.”22 He added: “We are

21

Chris Parr, Response: international universities speak out against Trump ban, The
Times
Higher
Education
(Jan.
31,
2017),
https://www.timeshighereducation.com/blog/response-international-universitiesspeak-out-against-trump-ban.

22

Id.
22

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.”23
The effects of the Proclamation on prospective international students are not
speculative.

Some amici have already suffered the negative effects of the

predecessor travel bans, and given the indefinite nature of the Proclamation’s bans
and restrictions on entry, amici will continue to suffer them. Many admissions
letters for fall 2017 were sent in spring of this year, just after the first travel ban was
issued. Prospective international students had a short window to decide whether to
attend a U.S. college or university. Faced with the prospect that they might not be
able to obtain visas, many reasonably chose to enroll at universities in other countries
instead of studying here. Many amici received calls from concerned prospective and
admitted students who questioned whether they could enroll at all in light of this
uncertainty.
Amici’s experiences of potential, and actual, declining international student
enrollment in the wake of the Proclamation and predecessor travel bans reverberate
throughout U.S. higher education. In a survey issued shortly after execution of the

23

Id.
23

second travel ban, 79% of surveyed U.S. college and university recruiters of
international students expressed serious concerns about their yield of admitted
undergraduate students from the Middle East; moreover, based only on the political
rhetoric around immigration leading up to the 2016 presidential election, nearly 40%
of the educational institutions surveyed reported an overall decrease in international
student applications for fall 2017 enrollment.24 In another survey, 46% of U.S.
graduate school deans reported seeing substantial declines in admission yields for
all international students for fall 2017 enrollment, and 52% reported seeing these
declines in admission yields of prospective international graduate students from the
Middle East and North Africa.25
These very real difficulties extend to faculty and scholars. Yale’s MacMillan
Center Council on Middle East Studies and its Program on Iranian Studies are
currently conducting searches for post-doctoral fellows and visiting scholars, with
the most promising candidates being Iranian nationals who are currently abroad. The
Proclamation’s indefinite suspension for Iranian nationals of all immigrant visas,

24

American Association of Collegiate Registrars and Admissions Officers, Treading
Topics Survey: International Applicants for Fall 2017—Institutional & Applicant
Perceptions 1-2, 8, 10 (Apr. 4, 2017), http://www.aacrao.org/docs/defaultsource/TrendTopic/Immigration/final-report.pdf?sfvrsn=0.
25

Hironao Okahana, Data Sources: Admission Yields of Prospective International
Graduate Students: A First Look, http://cgsnet.org/data-sources-admission-yieldsprospective-international-graduate-students-first-look (last accessed Nov. 13, 2017).
24

and all non-immigrant visas other than student and exchange visitor visas, will mean
that some candidates may have to turn down Yale’s offers. The University of
Pennsylvania has similar concerns, with three faculty recruits whose opportunities
may be eliminated by the Proclamation. Princeton and MIT, too, have received
numerous inquiries from academic departments about how to handle the questions
and concerns of faculty and scholar recruits and invited visitors who have expressed
hesitation about coming to the U.S.
Second, the Proclamation harms the current members of amici’s campuses
from the six affected countries. Even if it does not prematurely cancel their visas,
the Proclamation still separates members of amici’s communities from their family
members living abroad. For instance, the spouses and children of scholars and
researchers from Chad, Iran, Libya, Syria, and Yemen will be unable to enter the
U.S. even for a short-term visit, creating a traumatic separation as a result of their
family members’ decision to study and work here. Given that the Proclamation
suspends all categories of visas for Syrian nationals and suspends all visas other than
student and exchange visas for Iranian nationals, students, faculty, and scholars from
Syria and faculty and scholars from Iran are wary of leaving the U.S. because their
re-entry may be barred or challenged by immigration authorities. Many students
from the five countries also named in the predecessor travel bans remained in the
U.S. this past summer, in fear that leaving to work, study abroad, or visit their
25

families would risk indefinite exclusion or detention upon their return.

By

subjecting students from Iran and students, faculty, and scholars from Somalia to
undefined “enhanced screening and vetting,” the Proclamation gives them no
comfort that their fears were unfounded. The inscrutability of what this additional
vetting entails means that, even though students and scholars currently studying or
working at amici universities have already undergone and passed thorough vetting,
they have no assurances that they will pass the additional vetting ordered by the
Proclamation if they leave the U.S. and seek reentry.
These individuals are thus deterred from conducting field research, attending
academic conferences, or participating in international meetings in foreign nations;
for some, travel concerns will cause them to set aside projects that simply cannot be
completed without international travel. The Proclamation also takes a personal toll
because they may feel compelled to 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 U.S., and the
loss of a job, an academic degree, and years of hard work and research, indefinitely.
Third, the Proclamation’s chilling effects extend beyond persons from the six
targeted countries. Given the review of other countries directed by the Proclamation,
Proclamation § 4(a)(ii), and the possibility that other countries will be added to the
Proclamation’s scope, all international students, faculty, and scholars may
26

reasonably fear that their immigration status may be revoked at any time for reasons
having nothing to do with their conduct and based on no evidence that they pose any
security risk to this country. And should a new country find itself the target of a
subsequent Order banning entry of its nationals, the chaos resulting from the first
travel ban would repeat itself, reinforcing feelings of doubt and insecurity about this
nation.
Fourth, the Proclamation will impede successful academic collaboration.
American universities host thousands of conferences and symposia each year. These
academic meetings convene scholars within and across disciplines of study. They
are incubators for innovation and promote the free flow of information and ideas.
By hosting these events, amici ensure that their participating scholars can encounter
and collaborate with other scholars. The resulting collaborations are essential to
addressing problems that are global in scope, such as geopolitical conflict, terrorism,
and the spread of communicable diseases.
The Proclamation threatens these efforts by prohibiting certain academics
from traveling to the U.S., and by provoking a backlash from others who are not
subject to the ban. Indeed, international universities observed that the predecessor
travel bans would impede collaborative partnerships with American universities.26

26

Parr, supra note 21 (quoting the President of McMaster University, Canada, as
stating “This is a misguided and harmful step that is unnecessarily disruptive for
27

The negative consequences of the predecessor bans to collaboration have already
been felt. The University of Pennsylvania had planned to invite three Iranian human
rights activists to a conference in March 2017, but with the second travel ban in
effect, their participation would have been barred. Participants in a conference at
the Harvard Center for Middle Eastern Studies voluntarily withdrew due to current
U.S. immigration policies or perceptions thereof. The Sharmin & Bijan MossavarRahmani 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, as the Proclamation inhibits it from doing, 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 U.S. in response to the predecessor travel
bans.27 Thousands of scholars in the U.S. and abroad have pledged not to attend

students, faculty members and other partners. . . . As an internationally engaged
research intensive university, this abrupt change in policy has a chilling impact on
individual scholars and their families, and on the important relationships we have
carefully built over the years. Our collaborative partnerships allow us to forge
important research and educational programs and activities, which are threatened by
arbitrary measures such as the one announced last week.”).
27

See Shannon Najmabadi, Academics Mull Boycott of U.S. Conferences as a Way
of Fighting Travel Ban, The Chronicle of Higher Education (Jan. 30, 2017),
http://www.chronicle.com/article/Academics-Mull-Boycott-ofUS/239047?cid=pm&utm_source=pm&utm_medium=en&elqTrackId=e9a82fa115
e24765bc019b2dfc9d480e&elq=ef21be06f46043e287aeedd6a611eb6e&elqaid=12
357&elqat=1&elqCampaignId=5023; Elizabeth Redden, Boycotting the U.S., Inside
28

international conferences here because of these bans. 28 Given that the Proclamation
indefinitely extends the bans’ discriminatory restrictions on entry, these scholars
have no reason to end their boycott.
Academic conferences and meetings facilitate major breakthroughs and
discoveries, candid discussion and debate, and face-to-face meetings that generate
future partnerships. Excluding scholars from the six affected countries—and other
scholars who choose not to participate because of the Proclamation—will hamper
the success of these collaborations. This nation will inevitably suffer when these
meetings are shifted abroad to avoid the Proclamation effects.
Fifth, amici strive to foster a culture of diversity, inclusion, and tolerance on
their campuses. Supra Part I. The Proclamation 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 and religious
intolerance is not only acceptable but appropriate. Rather than securing American

Higher
Ed
(Jan.
31,
2017),
https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-somescholars-areboycotting-us-based-conferences.
28

In Solidarity with People Affected by the ‘Muslim Ban,’
https://docs.google.com/forms/d/e/1FAIpQLSeNN_2HHREt1hdm_CgWpFHw8NDPGLCkOwB4lLRFtKFJqI25w/viewform?c=0&w=1&fbzx=21
04368019732744200 (last visited Nov. 13, 2017).
29

universities, this thwarts amici’s ability to foster a diverse environment in which
individuals feel comfortable contributing to a robust exchange of ideas.
Finally, limiting the scope of the Proclamation to “foreign nationals who lack
any bona fide relationship with a person or entity in the United States,” Trump v.
International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017), as the
district court did in imposing an injunction only in part, International Refugee
Assistance Project, 2017 WL 4674314 at *39, does not rectify the Proclamation’s
harms to amici. Though the Supreme Court, in carving out a bona fide relationship
exception to the predecessor travel ban, offered some examples of which
relationships would qualify as “bona fide,” regrettably these examples did not
resolve the uncertainty the Proclamation has introduced into potential collaborations
between amici and international students, faculty, and scholars.
Students who have already been admitted to American universities, and
workers who have already accepted offers of employment here, are two examples of
qualifying bona fide relationships. IRAP, 137 S. Ct. at 2088. But what about
international scholars at amici universities who are not students or employees of
amici or any other American entity? The populations of such international scholars
at amici are sizeable. For instance, over 50 scholars from the six targeted countries
contribute to Harvard’s academic departments as visiting researchers, research and
postdoctoral fellows, and interns. None of these scholars is a student at Harvard, or
30

an employee of Harvard on a sponsored work visa. To Harvard, their relationship is
surely bona fide, but the University has no assurance that the U.S. will not conclude
otherwise at the border. The discretion afforded the government under this rule has
harsh consequences; for example, scholars and students may be loath to publish
research or other works critical of the government, its political preferences, or U.S.
foreign policy, lest their immigration status be threatened as a result. The ambiguity
and uncertainty inherent in the “bona fide relationship” test could well have a
destructive chilling effect on scholars and students who have traditionally enjoyed
an environment of academic freedom in this country.
The “bona fide relationship” carve-out also leaves the substantial class of
prospective international students, faculty, and scholars in a state of uncertainty. The
Supreme Court did not address whether this carve-out applies to individuals who do
not currently have, but may in the near future enter into a relationship with an
American entity. International students considering applying to amici in the 20172018 application cycle likely do not currently have a formal, documented
relationship with any U.S. entity, and they will not unless and until they are accepted
by an amicus university. So too for many international faculty and scholars not
currently employed by amici universities, or any other American entity, whom amici
universities may wish to recruit, interview, invite to lecture, or host for forthcoming
conferences. Yet without the ability to visit campus and meet with potential
31

colleagues or faculty, international students, faculty, and scholars are far less likely
to select an American college or university.

Even as partially enjoined, the

Proclamation thus places amici at a distinct disadvantage relative to international
schools.
There are other problems with the Proclamation as partially enjoined.
Although the Supreme Court made clear that “a lecturer invited to address an
American audience” has a qualifying bona fide relationship with the inviting entity,
IRAP, 137 S. Ct. at 2088, it said nothing about a scholar who intends to attend an
academic conference here.

That scholar may informally participate in the

conference by engaging with lecturers and other attendees, but he or she may not
have been invited formally to do so. There is no telling whether that sort of
relationship would qualify under the bona fide relationship test (or the government’s
interpretation thereof). These sorts of situations arise frequently each year at
American colleges and universities.
Because the “bona fide relationship” carve-out fails to account for the myriad
ways in which amici universities collaborate with international students, faculty, and
scholars, it may impede the creation of amici’s future bona fide relationships. Worse
still, this carve-out will not prevent the potential long-term attrition at amici of
persons from the countries directly affected by the Proclamation—and from other

32

countries as well. Even in its more limited form, the Proclamation harms American
colleges and universities and should be enjoined in its entirety.
CONCLUSION
Amici take seriously the safety and security of their campuses and the nation:
if amici’s campuses were not safe, or the towns and cities in which they are located
were not secure, amici could not maintain their world-renowned learning
environments. Amici, however, believe that safety and security concerns can be
addressed in a manner that is consistent with the values America has always stood
for, including the free flow of ideas across borders and the welcoming of foreign
nationals to our campuses.

The Proclamation falls far short of justifying its

indefinite restrictions on the entry of individuals from the Muslim-majority countries
it targets. Given this, as well as the significant burdens the Proclamation inflicts on
amici’s current and potential students, faculty, and scholars and its substantial
impediment of amici’s ability to fulfill their educational missions, amici respectfully
urge this Court to reverse the decision to the extent that its injunction is limited to
individuals with a qualifying “bona fide” relationship, and otherwise affirm the
decision enjoining the Proclamation.

33

Respectfully submitted,

Dated: November 17, 2017

JENNER & BLOCK LLP
/s/ Lindsay C. Harrison
Thomas J. Perrelli
Lindsay C. Harrison
Tassity S. Johnson
1099 New York Ave NW
Washington, DC 20001-4412
Phone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Amici
Colleges and Universities

34

CERTIFICATE OF COMPLIANCE
Counsel for amici curiae certifies that this brief contains 7,301 words, based
on the “Word Count” feature of Microsoft Word 2013, including footnotes. Pursuant
to Federal Rule of Appellate Procedure 32(a)(7)(B)(iii), this word count does not
include the words contained in the Corporate Disclosure Statement, Table of
Contents, Table of Authorities, and Certificates of Counsel.
Dated: November 17, 2017

By: /s/ Lindsay C. Harrison
Lindsay C. Harrison
Attorney for Amici
Colleges and Universities

35

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Fourth Circuit by using the
appellate CM/ECF system on November 17, 2017. Participants in the case who are
registered CM/ECF users will be served by the appellate CM/ECF system.

By: /s/ Lindsay C. Harrison
Lindsay C. Harrison
Attorney for Amici
Colleges and Universities

36