State of Hawaii v. Trump

Filing 212

MEMORANDUM in Support of 65 Plaintiffs' Motion for Temporary Restraining Order filed by New York University. (Attachments: # 1 Certificate of Service)(Black, Claire)

ALSTON HUNT FLOYD & ING

PROSKAUER ROSE LLP

J. Blaine Rogers
8606
Claire Wong Black
9645
1001 Bishop Street, Suite 1800
Honolulu, Hawai`i 96813
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Steven E. Obus (Pro Hac Vice)
Seth D. Fiur (Pro Hac Vice)
Tiffany M. Woo (Pro Hac Vice)
Eleven Times Square
New York, New York 10036
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Attorneys for Amicus Curiae
NEW YORK UNIVERSITY
(See Next Page for Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
STATE OF HAWAI`I and ISMAIL
ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of Homeland Security; U.S.
DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.

Case No. 1:17-CV-00050 DKW-KSC
BRIEF OF NEW YORK
UNIVERSITY AS AMICUS
CURIAE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING
ORDER; CERTIFICATE OF
SERVICE

ADDITIONAL COUNSEL FOR AMICUS CURIAE
NEW YORK UNIVERSITY
Terrance J. Nolan (Pro Hac Vice)
General Counsel and Secretary
New York University
70 Washington Square South -1168
New York, New York 10012
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]

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TABLE OF CONTENTS
INTEREST OF AMICUS ...........................................................................................1
INTRODUCTION AND SUMMARY OF THE ARGUMENT ...............................1
ARGUMENT .............................................................................................................3
I.

A Diverse International Community is Critical to NYU’s
Identity and Mission. .............................................................................3

II.

The Executive Order Significantly Harms NYU and Its
Constituents. ..........................................................................................6

III.

The Executive Order Has the Same Unlawful Policy Outcomes
as Its Predecessor, In Violation of the Equal Protection Clause,
the Establishment Clause and the Immigration and Nationality
Act. ......................................................................................................14

CONCLUSION ........................................................................................................28

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TABLE OF AUTHORITIES
Page(s)
Cases
Arce v. Douglas,
793 F.3d 968 (9th Cir. 2015) .............................................................................. 16
Aziz et al. v. Trump et al.,
2017 WL 580855 (E.D. Va., Feb. 13, 2017) ......................................................22
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
512 U.S. 687 (1994) ...........................................................................................16
Bery v. City of N.Y.,
97 F.3d 689 (2d Cir. 1996) ................................................................................... 8
Bolling v. Sharpe,
347 U.S. 497 (1954) ............................................................................................15
Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993) ................................................................................19, 21, 27
Clark v. Jeter,
486 U.S. 456 (1988) ............................................................................................16
Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter,
492 U.S. 573 (1989) ............................................................................................25
Department of Agriculture v. Moreno,
413 U.S. 528 (1973) ............................................................................................25
Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) .................................................................................... 8, 12
Grutter v. Bollinger,
539 U.S. 306 (2003) .......................................................................................... 7, 8
Hassan v. City of New York,
804 F.3d 277 (3d Cir. 2015) ............................................................................... 16
Jana-Rock Const., Inc., v. N.Y. State Dep’t of Econ. Dev.,
438 F.3d 195 (2d Cir. 2006) ............................................................................... 15
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Keyishian v. Bd. of Regents of Univ. of State of N.Y.,
385 U.S. 589 (1967) .............................................................................................. 7
Larson v. Valente,
456 U.S. 228 (1982) ......................................................................................16, 27
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995) ..............................................................................17
Lynch v. Donnelly,
465 U.S. 668 (1984) ...........................................................................................25
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ......................................................................................16, 25
Miller v. Johnson,
515 U.S. 900 (1995) ............................................................................................26
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) ........................................................................................8, 14
Romer v. Evans,
517 U.S. 620 (1996) ......................................................................................21, 26
Sweezy v. New Hampshire,
354 U.S. 234 (1957) ............................................................................................14
Vill. of Arlington Heights v. Metro Hous. Dev. Corp.,
429 U.S. 252 (1977) ............................................................................................15
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ........................................................................8, 23
Statutes
8 U.S.C. § 1152(a)(1)(A) .........................................................................................17
8 U.S.C. § 1182(f) ....................................................................................................18
Immigration and Nationality Act of 1965.........................................................passim

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BRIEF OF NEW YORK UNIVERSITY AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
INTEREST OF AMICUS
Amicus New York University (“NYU”) is an institution of higher
learning headquartered in New York City, with campuses on nearly every
continent. A critical component of its global mission is to create an environment
that fosters achievement borne of the free exchange of ideas and information. By
welcoming and engaging students and scholars from the broadest range of
backgrounds and nationalities, NYU is able to advance that mission.
As a global university centered in New York City—one of the world’s
most internationally diverse cities—NYU has a vital interest in the proper
administration, within constitutional limits, of the immigration laws of the United
States. NYU is deeply concerned that the Executive Order issued by the President
on March 6, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into
the United States” (the “Executive Order”), like its immediate predecessor,
exceeds those limits. If allowed to stand, it would impair unique educational
opportunities that NYU is otherwise able to provide, and thus inflict harm on the
university, on its constituents, and on the community at large.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
Thousands of prospective students apply to NYU every year, seeking
the opportunity to study at one of the most internationally diverse universities in

the world. At the core of NYU’s institutional mission are the twin aims of
providing an exceptional academic experience for its students and fostering worldclass international scholarship. NYU has invested significant resources in
developing an environment in which its diverse student body and faculty can
thrive, for the benefit of the academic community, the United States, and the
world. Implementation of the Executive Order will significantly undermine these
efforts.
By obstructing the entry of international students, faculty and other
scholars into the United States based solely on their having come from one of the
Muslim-majority countries singled out for adverse treatment in the Executive
Order—without any reason to believe that the individuals are involved at all in any
terrorist activity—the Order will gratuitously and unlawfully encumber NYU’s
ability to conduct its many international programs, which rely on input from
faculty and students from the affected countries; impair its ability to transmit its
strongly-held values abroad; and obstruct its ability to provide to all of its students
the educational benefits that flow from a fully diverse student body and faculty.
For these reasons, among others, implementation of the Executive Order should be
halted.

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ARGUMENT
I.

A Diverse International Community is Critical to NYU’s Identity and
Mission.
NYU is a “Global Network University,” with campuses around the

world, including in Africa, Asia, Europe, North America and South America.1
These campuses offer to all NYU students a range of multi-disciplinary
opportunities for research, teaching and scholarly collaboration. In addition to
developing its own campuses, NYU has partnered with numerous schools
worldwide both to create educational opportunities for international students and
scholars,2 and to expose its domestic students to the vast wealth of experience and
knowledge that can be gained by traveling, researching and studying abroad.3

1

See NYU, The Global Network, https://www.nyu.edu/faculty/governancepolicies-and-procedures/faculty-handbook/the-university/organization-andadministration/the-global-network.html.
2

See Global Academic Partnerships and affiliations, NYU (March 2, 2016),
https://www.nyu.edu/faculty/global-academic-partnerships-and-affiliations.html
(describing global partnerships and affiliations with schools for the humanities,
business, medicine, sociology, anthropology, and the arts, located in Accra, Berlin,
Buenos Aires, Florence, London, Madrid, Paris, Prague, Sydney, Tel Aviv, and
Washington D.C.); see also Update on Faculty Engagement and Academic
Development at the Global Sites (6/11/15 Memo), NYU (June 11, 2015),
https://www.nyu.edu/faculty/global-academic-partnerships-andaffiliations/memos/faculty-engagement-june-2015.html (detailing the growth of
new collaborative programs with faculty, students, and departments at partnership
and affiliate schools).
3

See, e.g., NYU International Exchange Program, NYU,
https://www.nyu.edu/academics/studyingabroad/exchange/internationalexchange.html; Stern IBEX (International Business
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Attracting to the United States international students and scholars
from a wide variety of backgrounds is intrinsic to NYU’s success as an educational
institution. To that end, NYU has made it a priority to “embrace diversity among
faculty, staff and students to ensure a wide range of perspectives, including
international perspectives, in the educational experience.”4 Its efforts have been
highly successful—in 2015-2016, NYU hosted more international students and
scholars than any other university in the United States—approximately 15,000
international students and more than 1,200 international scholars,5 constituting
more than a third of NYU’s graduate student population, and nearly a fifth of its
undergraduate population. The most creative, talented and industrious members of
communities all over the world have at one time called NYU home.6
Exchange), NYU, https://www.nyu.edu/academics/studyingabroad/exchange/stern-ibex-international-business-exchange.html.
4

NYU Mission Statement, www.nyu.edu/about.

5

NYU Office of Global Services, Annual Report: September 1, 2015 – August 31,
2016, http://www.nyu.edu/content/dam/nyu/globalServices/documents/
annualreport/annual%20report.pdf.
6

Many NYU alumni from foreign countries have gone on to become leaders in
their communities. To take but a few examples, NYU alumni Shimon Peres, the
ninth President of Israel, and former Egyptian vice president Mohammed Mustafa
ElBaradei, both won the Nobel Peace Prize for their contributions to the region
targeted by the Executive Order. Working with fellow NYU School of Medicine
alumnus Jonas Salk, Albert Sabin developed oral polio vaccines that played a key
role in substantially eradicating the disease. More recently, Eric Richard Kandel,
who also attended NYU’s School of Medicine, was awarded a Nobel Peace Prize
for discoveries that paved the way to the modern understanding of memory
formation.
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NYU’s presence in New York City has itself played an integral role in
the University’s ability to achieve its international mission, proudly “tak[ing] its
name and spirit from one of the busiest, most diverse and dynamic cities of all.”7
Millions of immigrants have come to New York as the first step toward making a
life in the United States,8 believing that the Statue of Liberty in fact welcomes the
“huddled masses yearning to breathe free . . . .” 9 New York is home to millions of
foreign-born residents—more than a third of the City’s population.10 The City has
long served as a hub of international commerce, cultural exchange and diplomacy.
Its international influences are woven into the fabric of everyday life experienced
by NYU’s students and scholars,11 and its spirit infuses and amplifies NYU’s
culture of embracing diversity.

7

NYU Mission Statement, www.nyu.edu/about.

8

From 1892 to 1954 alone, over twelve million immigrants came to the United
States through Ellis Island. See Ellis Island History,
www.libertyellisfoundation.org/ellis-island-history.
9

Emma Lazarus, “The New Colossus,” Liberty State Park (1883),
http://www.libertystatepark.com/emma.htm (last accessed March 6, 2017).
10

Thomas P. DiNapoli, “The Role of Immigrants in the New York City Economy,”
New York State Comptroller Report 7-2016 (Nov. 2015),
https://osc.state.ny.us/osdc/rpt7-2016.pdf (“Nearly three-quarters of the 4.4 million
immigrants in New York State live in New York City . . . .”).
11

Students Share International Experiences at Global Engagement Symposium,
NYU Arts & Liberal Studies (March 20, 2015), http://www.liberalstudies.nyu.edu/
object/global.symposium (“[Students] presented on experiences that included
installing a solar electricity system in a Nicaraguan village, independent research
into NYU London’s history as the headquarters of a musicians’ club, and writing a
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NYU’s mission and values are embodied in the words of its current
president, Dr. Andrew Hamilton, himself an immigrant. In a letter to the NYU
community addressing the January 27, 2017 Executive Order that preceded the
Executive Order now at issue in these proceedings, Dr. Hamilton articulated the
importance of free movement across borders in pursuit of scholarship and the harm
arising from its unwarranted obstruction:
As a scientist who studied and worked in four countries
before becoming a citizen of the U.S., I know how
important it is to be able to move across borders in
peaceful pursuit of one’s scholarship. I know, too, more
than most given my background and my field, how much
goodwill the U.S. earns for itself through the openness of
its education system and how widely those who study
here can spread American values. And I know, as well,
that these developments are not just a matter of disrupted
educational plans or lost opportunities or even damage to
the academic enterprise; beyond all that, this order harms
one of the most admired and cherished of American
principles–religious non-discrimination itself.12
II.

The Executive Order Significantly Harms NYU and Its Constituents.
By indiscriminately targeting individuals from the Muslim-majority

countries of Iran, Libya, Somalia, Sudan, Syria and Yemen without any basis to
believe that such individuals pose the slightest threat to the national security of the
policy report on asylum seekers in Tel Aviv.”) (One student commented: “One of
the main reasons I decided to study at NYU was the opportunity for global
experiences.”).
12

Letter from Dr. Andrew Hamilton to NYU Community (Jan. 29, 2017),
http://www.nyu.edu/about/leadership-university-administration/office-of-thepresident/communications/the-recent-executive-order-on-immigration.html.
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United States, the Executive Order improperly compromises the diversity that is
central to NYU’s identity and mission. Approximately 120 NYU students and ten
scholars at the New York City campus alone come from the six Muslim-majority
countries specified in the Executive Order. Many others from those countries will
be discouraged or prevented by the Executive Order from joining them at NYU.
Courts have long emphasized the importance of promoting diversity
and freedom in educational environments, recognizing that, due to the classroom’s
vital role as a “marketplace of ideas,” constitutional protections are “nowhere more
vital than in the community of American schools.” Keyishian v. Bd. of Regents of
Univ. of State of N.Y., 385 U.S. 589, 603 (1967). “The nation’s future depends
upon leaders trained through wide exposure to that robust exchange of ideas which
discovers truth out of a multitude of tongues, [rather] than through any kind of
authoritative selection.” Id. (internal citation and quotation marks omitted).
Diversity similarly “helps break down racial stereotypes, and enables
[students] to better understand” those with different backgrounds. Grutter v.
Bollinger, 539 U.S. 306, 330 (2003). As a result, diversity helps impart the “skills
needed in today’s increasingly global marketplace” by “expos[ing] [students] to
widely diverse people, cultures, ideas, and viewpoints.” Id. at 330; see also
Keyishian, 385 U.S. at 603. Recognizing these benefits, the Supreme Court has
held that the Constitution protects a school’s “right to select those students who

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will contribute the most to the ‘robust exchange of ideas . . . .’” Regents of Univ.
of Cal. v. Bakke, 438 U.S. 265, 313 (1978); see also Fisher v. Univ. of Tex. at
Austin, 133 S. Ct. 2411, 2417 (2013) (recognizing compelling governmental
interest in “the educational benefits that flow from a diverse student body”);
Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (recognizing a school’s
ability to assert harm on behalf of its students, including harm to the university’s
ability to accomplish its global mission).
By its very nature and goals, implementation of the Executive Order
threatens that constitutionally protected diversity. See Fisher, 133 S. Ct. at 2417;
Grutter, 539 U.S. at 328 (observing that a school’s “educational judgment that
such diversity is essential to its educational mission is one to which we defer”);
Bakke, 438 U.S. 265 at 313; see also Bery v. City of N.Y., 97 F.3d 689, 694 (2d Cir.
1996) (“When an alleged deprivation of a constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.”) (quoting 11
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2948, at
440 (1973)).
The harm that will flow from the Executive Order is in any case
manifest. By targeting the populations of six Muslim-majority nations for
exclusion from the United States, the Executive Order will hinder NYU’s efforts to
expose international students and scholars to a broad array of ideas and influences.

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This cross-cultural exchange buttresses key democratic traditions, such as free
speech, a free press,13 free and fair elections, and freedom of assembly.14 By
fostering a culture of international exchange and dialogue, rather than fear and
hatred, NYU’s international programs thus combat radicalization.15 Reducing this
cross-cultural exchange will deprive NYU of opportunities to share those key

13

Indeed, many NYU graduates of the Near Eastern Studies program have gone on
to be respected journalists, helping shape the thoughts for millions of readers about
life and culture in the affected regions. Jared Malsin, who graduated from NYU’s
Near Eastern Studies in 2010, is TIME magazine’s Middle East bureau chief, and
former West Bank and Gaza Palestinian news agency Ma’an chief English editor.
See About – Jared Malsin, http://jaredmalsin.com/about.html. Habib Battah, who
graduated from NYU’s Near Eastern Studies and Global Journalism in 2010, is a
prominent journalist in Al Jazeera covering terrorism in the Middle East among
other events. See Habib Battah Profile, Al Jazeera,
http://www.aljazeera.com/profile/habib-battah.html.
14

See, e.g., United Nations Security Council Resolution 2178, adopted in
September 2014,
http://www.un.org/en/sc/ctc/docs/2015/SCR%202178_2014_EN.pdf (highlighting
the need for “quality education for peace that equips youth with the ability to
engage constructively in civic structures and inclusive political processes”).
15

See, e.g., Preventing Violent Extremism Through Promoting Inclusive
Development, Tolerance and Respect for Diversity, United Nations Development
Programme 11 (2016) (identifying as one strategy to prevent violent extremism
“[p]romoting respect for human rights, diversity and a culture of global citizenship
in schools and universities”); see also Marta Mikilikowska, “Development of antiimmigrant attitudes in adolescence: The role of parents, peers, intergroup
friendships, and empathy,” British Journal of Psychology (2017),
http://onlinelibrary.wiley.com/doi/10.1111/bjop.12236/abstract (showing that
adolescents with immigrant friends are “less affected by parents and peers’
prejudice than youth without immigrant friends”).
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democratic traditions with students from abroad.16 And in doing so, the Executive
Order will diminish the global reach of American universities and risk robbing the
nation, and the world, of their potential contributions.
Beyond its impact on the NYU community’s ability to disseminate
important shared values, the Executive Order threatens NYU’s own diverse
international community, harming the University’s current and prospective
students, scholars and faculty. In addition to the day-to-day cultural exchange that
occurs at a diverse university, NYU has many programs that facilitate the
understanding of other cultures, such as the Hagop Kevorkian Center (“the
Center”), which focuses on Near Eastern studies and was created “to foster the
interdisciplinary study of the modern and contemporary Middle East and to
enhance public understanding of the region.”17 To achieve this goal, it hosts events
exploring topics such as “current events and policy issues relating to the middle
east,” some of which include discussions relating specifically to the six countries

16

See, e.g., Study Away in the US and Around the World, Studying Abroad | NYU,
https://www.nyu.edu/academics/studying-abroad.html (video testimonials of NYU
students studying abroad) (“Regardless of where you go, you’re going to
experience, you know, a beautiful city and a beautiful place, you are going to meet
new people, you are going to have new experiences and opportunities, you are
going to grow personally, you are going to grow academically, and you’re going to
come back a better person.”).
17

About, Hagop Kevorkian Center for Near Eastern Studies, NYU,
http://neareaststudies.as.nyu.edu/page/about.
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affected by the Executive Order.18 The Center also collaborates with “nearly 100
teachers from public and private schools across the New York metropolitan area to
participate in Center-sponsored workshops on the Middle East,” which allow
Center-affiliated faculty to “share expertise on the Middle East with journalists and
government agencies on a regular basis and discuss current events and policy
issues at university and community events.” These programs are vital to public
awareness, which is crucial to NYU’s ability to serve as an educational institution
“fitting for all and graciously open to all.”19
From the joint master’s degrees offered by the Center, to the graduate
programs offered by the Middle Eastern and Islamic Studies program, the value of
NYU’s educational opportunities is predicated in substantial part on the quality and
diversity of its faculty and students. The Executive Order will interfere with

18

See http://neareaststudies.as.nyu.edu/page/upcomingevents/. For example, on
February 15, 2017, the Center hosted two films about the Syrian refugee crisis
entitled “District Zero” and “Siege.” On February 23, they hosted an event
focused on Iran entitled “Picturing Urban Modernity: Tehran and its Cinematic
Configurations, 1900s-1930s,” which explores “the role of cinema in shaping
urban modernity in Tehran from 1900s to 1930s.” See Picturing Urban Modernity:
Tehran and its Cinematic Configurations, 1900s-1930s, New York University,
http://neareaststudies.as.nyu.edu/object/kc.events.picturingurbanmodernity/. A
film screening involving the Syrian refugee crisis took place on March 1, and
another is scheduled March 22. See On the Bride’s Side, Visual Culture, Loss and
Resilience, New York University, http://neareaststudies.as.nyu.edu/object/kc.
events.brides.side; Not Who We Are, Visual Culture, Loss and Resilience, New
York University, http://neareaststudies.as.nyu.edu/object/kc.events.notwhoweare.
19

See NYU Mission Statement, www.nyu.edu/about.

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numerous on-campus programs like these, which are central to creating an
environment of intellectual and cultural exchange, and thus heightened
international awareness and understanding, at a time when such understanding is
more important than ever.20
Finally, all students suffer when the diversity of ideas and
backgrounds to which they are exposed is diminished. See Fisher, 133 S. Ct. at
2417. Unchecked, the Executive Order will have a direct and immediate impact on
the large number of international students and scholars who wish to become
affiliated with NYU or to participate in academic conferences at NYU in their
fields.21 Prospective students who have yet to enroll will be delayed or entirely
prevented from beginning their academic careers.

20

See, e.g., Nassir Abdulaziz Al Nasser (High Representative for United Nations
Alliance of Civilizations), UNOAC | Remarks |Parliamentary Assembly of the
Mediterranean (February 23, 2017), https://www.unaoc.org/2017/02/remarks11th-plenary-session-parliamentary-assembly-of-the-mediterranean/ (commenting
on the rise “of violence and xenophobia against minorities” and remarking that
“inclusiveness has become a pre-requisite for peaceful society” when it comes to
“migration laws,” and that “[p]romoting and strengthening dialogue is an essential
tool to prevent and defeat violent and extremist ideologies”).
21

“MEIS Statement on Executive Order to Limit Entry of Middle Eastern
Refugees and Immigrants,” MEIS | New York University,
http://meis.as.nyu.edu/object/statement_executive_order.
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At this juncture, the Executive Order, slated to be enforced from
March 16 to June 6,22 would substantially interfere with students from the targeted
countries seeking to enroll in NYU’s Summer Session, as prospective students will
be deterred from even attempting to enter the country at this time. If the duration
of the Executive Order were extended, many more students and scholars with vast
untapped potential would be prevented from achieving the success of which they
are capable, harming them, the NYU community, and ultimately the world as a
whole.
For example, Shadi Hedarifar, a prospective graduate student who
was accepted to schools worldwide but wanted to study in the United States, may
not be able to attend classes at NYU with worldwide leaders in her field.23
Ms. Hedarifar has written that because of the January 27, 2017 Executive Order,
her “entire future [was] destroyed in one second.” After saving money for the

22

See Executive Order § 2(c) (directing suspension “for 90 days from the effective
date of this order”); § 14 (“This order is effective . . . on March 16, 2017.”).
23

See Samantha Michaels, I’m an Iranian Woman Whose Dream Is to Study in
America. Here’s My Message for Trump., Mother Jones (Jan. 29, 2017),
http://www.motherjones.com/politics/2017/01/iranian-student-trump-immigration
(“We Iranian students strongly believe that diversity in ethnicity, race, religion,
and color is one of the greatest strengths of the United States. And Trump’s
Muslim ban will destroy this.”).
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application fees “that a whole family could live [on] for a month,” Ms. Hedarifar’s
dreams of studying in NYU may well be shattered.24
An integral “[p]art of the business of a university [is] to provide that
atmosphere most conducive to speculation, experiment, and creation.” Bakke, 438
U.S. at 305 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)
(Frankfurter, J., concurring in judgment)). To preserve for NYU and its students
and scholars the constitutionally protected benefits of diversity and the free
exchange of ideas, and to eliminate the discriminatory exclusion from the United
States of persons from Muslim-majority countries, this Court should grant the
relief sought by Plaintiffs and halt the implementation of the Executive Order.
III.

The Executive Order Has the Same Unlawful Policy Outcomes as Its
Predecessor, In Violation of the Equal Protection Clause, the
Establishment Clause and the Immigration and Nationality Act.
The Executive Order states that its aim is to “replace” Executive

Order 13769, signed January 27, 2017, and respond to judicial orders granted
against the earlier Order by “exclud[ing] from the suspensions categories of aliens
that have prompted judicial concerns and . . . clarif[ying] or refin[ing] the approach
to certain other issues or categories of affected aliens.”25 The Executive Order
made various changes to the practices to be implemented under the prior Order,

24

Id.

25

Executive Order § 1(i).

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including removing Iraq from the list of countries whose nationals are subject to
the 90-day suspension of unrestricted entry. 26 But it nonetheless suffers from
many of the same defects as the prior Order, and is animated by the same unlawful,
discriminatory intent.
The revised Executive Order, like its predecessor, violates the
Constitution’s Equal Protection Clause, because it discriminates against individuals
based on their religion and reflects a clear animus towards Muslims. See Bolling v.
Sharpe, 347 U.S. 497 (1954) (applying the Fourteenth Amendment’s equal
protection clause to the federal government through the Fifth Amendment).
Discrimination against a protected class on the basis of overt animus is the most
obvious and fundamental abuse of government authority against which the Equal
Protection Clause was created to protect. Vill. of Arlington Heights v. Metro Hous.
Dev. Corp., 429 U.S. 252, 265-66 (1977) (“When there is proof that a
discriminatory purpose has been a motivating factor in the decision, . . . judicial
deference is no longer justified.”); Jana-Rock Const., Inc., v. N.Y. State Dep’t of
Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006) (“Government action . . . violates
principles of equal protection if it was motivated by discriminatory animus and its
application results in a discriminatory effect.”) (internal citation omitted). As such,
classifications based on religion or national origin are scrutinized to the highest
26

See Executive Order § 2(c).

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degree. Clark v. Jeter, 486 U.S. 456, 461 (1988) (national origin); Larson v.
Valente, 456 U.S. 228, 244 (1982) (religion). A law may fail to withstand scrutiny
even if discrimination is not “the sole purpose of the challenged action, but only
that it was a ‘motivating factor.’” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir.
2015) (internal citation omitted).
For similar reasons, the Executive Order violates the Establishment
Clause of the Constitution. The “clearest command of the Establishment Clause is
that one religious denomination cannot be officially preferred over another.”
Larson, 456 U.S. at 244; McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844, 866 (2005) (considering the “historical context” of the government
act and the “specific sequence of events leading to [its] passage”) (internal citation
omitted). “[T]he Religion Clauses . . . and the Equal Protection Clause as applied
to religion . . . all speak with one voice on this point: Absent the most unusual
circumstances, one’s religion ought not affect one’s legal rights or duties or
benefits.” Hassan v. City of New York, 804 F.3d 277, 290 n.2 (3d Cir. 2015)
(quoting Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715
(1994) (O’Connor, J., concurring in the judgment) (alterations in original, internal
quotation marks omitted)).
Finally, the Executive Order, like the one that preceded it, contravenes
the letter and intent of the Immigration and Nationality Act of 1965 (the “INA”),

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exceeding the scope of presidential authority under that statute. The INA was
enacted at the height of the civil rights movement, to combat the then-current
system of national-origin quotas, which the nation’s leaders believed to be
“contrary to our basic principles as a nation.”27 The legislative history of the INA
shows that its intent was to “remove from our law a discriminatory system of
selecting immigrants that is a standing affront to millions of our citizens.”28
Effectuating that intent, Section 202 of the INA prohibits discrimination in
admissions on the basis of national origin. See 8 U.S.C. § 1152(a)(1)(A) (with
limited statutory exceptions, “no person shall receive any preference or priority or
be discriminated against in the issuance of an immigrant visa because of the
person’s race, sex, nationality, place of birth, or place of residence.”); see, e.g.,
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469

27

111 Cong. Rec. 24, 225 (1965) (statement by Senator Edward M. Kennedy). See
also id. at 21, 778 (statement of Representative Paul Krebs that immigration rules
based on national origin were “repugnant to our national traditions,” and that “we
must learn to judge each individual by his own worth and by the value he can bring
to our Nation.”).
28

Immigration: Hearings Before Subcomm. No. 1 of the Comm. on the Judiciary,
House of Representatives, on H.R. 7700 and 55 Identical Bills, 88th Cong. 901-02
(1964), reprinted in 10A Oscar Trelles & James Bailey, Immigration and
Nationality Acts: Legislative Histories and Related Documents, doc. 69A (1979)
410 (remarks of Attorney General Robert Kennedy) (noting that the bill “would
remove from our law a discriminatory system of selecting immigrants that is a
standing affront to millions of our citizens”).
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(D.C. Cir. 1995) (holding that Congress, in enacting Section 202, “unambiguously
directed that no nationality-based discrimination shall occur”).
The authority of the President under INA Section 212(f) to “suspend
the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or
impose on the entry of aliens any restrictions he may deem to be appropriate,” see
8 U.S.C. § 1182(f), is circumscribed by Section 202’s express and later-enacted
prohibition against discrimination on the basis of national origin. In addition, any
presidential proclamation under Section 212(f) requires a legitimate finding that
“the entry of [the suspended] aliens or . . . class of aliens into the United States
would be detrimental to the interests of the United States.” Id. As shown below,
the Executive Order violates both Section 202’s unambiguous prohibition against
discrimination on the basis of national origin, and INA Section 212(f)’s
requirement that an exercise of presidential authority under that section be justified
by a legitimate finding that the admission of a suspended class of individuals is
against the interests of the United States.
The Executive Order specifically violates the Constitution and the
INA because it arbitrarily singles out six Muslim-majority countries as targets for
its ban. This invidious discrimination is apparent from the text of the Executive
Order itself, its history, and the unsubstantiated pretext offered in support of the
Executive Order.

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First, the plain text of the Executive Order’s 90-day suspension of
entry by nationals of the six countries discriminates on the basis of religion against
Muslims by targeting all of the citizens of six Muslim-majority countries without a
plausible basis for doing so. The text of the order further violates the Equal
Protection Clause and Establishment Clause of the Constitution and Section 202’s
prohibition against discrimination based on national origin. The President’s denial
that the Executive Order is a Muslim ban is belied by its impact: each of the
targeted countries has a Muslim population of 90% or more.29 Three of the
countries—Iran, Somalia, and Yemen—have Muslim populations of more than
99%.30
The Executive Order crosses from disparate impact into overt
discrimination by exploiting and perpetuating stereotypes of Muslims. The Order
invokes “honor killings”31 and “radicalized” foreign nationals.32 These terms are
not “neutral,” but carry very specific meanings aimed at a faith “singled out for
discriminatory treatment.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 538 (1993) (holding that use of allegedly neutral terms “sacrifice” and
29

Pew Research Ctr., “The Global Religious Landscape: a Report on the Size and
Distribution of the World’s Major Religions as of 2010,” 47-50 (2012),
https://goo.gl/HVoVJI (Libya is 96.6% Muslim, Syria 92.8%, and Sudan 90.7%).
30

Id.

31

Executive Order § 11(iii).

32

Id. § 11(ii).

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“ritual” were evidence of singling out a particular religion in violation of the
establishment clause).33
The call for public reporting of “honor killing” is a thinly-veiled
attempt to paint Muslim men as domestic abusers.34 This blatant stigmatization of
Muslims runs afoul of the Establishment Clause and Equal Protection Clause. See

33

That the language of the Executive Order is targeted against people of the
Muslim faith becomes even more evident when one considers the leaked draft of
the January 27, 2017 Executive Order, which included the phrase “violent religious
edicts”—a transparent attempt to disparage Muslims as barbaric. Daniel M.
Kowalski, Executive Order: Protecting the Nation from Terrorist Attacks by
Foreign Nationals – White House (Draft, Unsigned, Undated), Lexis Nexis Legal
Newsroom (Jan. 25, 2017), https://www.lexisnexis.com/legalnewsroom/
immigration/b/newsheadlines/archive/2017/01/25/executive-order-protecting-thenation-from-terrorist-attacks-by-foreign-nationals-white-house-draft-unsignedundated.aspx?Redirected=true (“We cannot . . . admit into our country . . . those
who would place violent religious edicts over American law.”).
34

Executive Order § 11(iii) (calling for the Attorney General “to collect and make
publicly available . . . information regarding the number and types of gender-based
violence against women, including so-called ‘honor killings,’ in the United states
by foreign nationals”); see also Leti Volpp, Trump’s mention of ‘honor killings’
betray the truth of his ‘Muslim ban’, The Hill (Feb. 22, 2017), http://originnyi.thehill.com/blogs/pundits-blog/immigration/320632-trumps-mention-of-honorkillings-betray-the-truth-of-his (“Honor killings stand in for the idea of Muslim
barbarity. Their invocation in the executive order helps make apparent that the
‘foreign nationals’ whose entry poses a terrorist threat are Muslim.”); Emma
Green, Trump’s ‘Honor Killing’ Tracking System Could Exascerbate Domestic
Violence, The Atlantic (Mar. 7, 2017),
https://www.theatlantic.com/politics/archive/2017/03/honor-killingstrump/518766/ (“The term itself is loaded: It suggests that homicide can be
religiously justified. But “‘honor killing’ has nothing to do with Islam,” argued
Aisha Rahman, the executive director of Karamah, a research and advocacy
organization that works on issues of gender equity in Islam. “In Islamic law,
there’s nothing that’s even called ‘honor killing.’”).
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Lukumi, 508 U.S. at 538; Romer v. Evans, 517 U.S. 620, 634 (1996) (“[L]aws of
the kind now before us raise the inevitable inference that the disadvantage imposed
is born of animosity toward the class of persons affected.”). It also reveals how the
Executive Order does not satisfy INA Section 212(f)’s requirement of a “legitimate
finding” that the admission of a suspended class of individuals is against the
interests of the United States. Domestic violence is a serious problem for people of
all faiths and backgrounds, not just those from the six Muslim-majority countries. 35
In addition to being reflected in the Executive Order’s text, invidious
discrimination, offensive to the Constitution and the INA, is confirmed by a review
of its history, including statements made by the President and others regarding its
purposes. White House Advisor Stephen Miller conceded when discussing the
revised Executive Order that the changes “are mostly minor, technical

35

See, e.g., National Intimate Partner and Sexual Violence Survey 2010 Summary
Report, National Center for Injury Prevention and Control Division of Violence
Prevention 40 (2010),
https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf (finding
domestic violence occurs against intimate partners across all races and ethnicities).
Particularly when one takes into account the frequency of hyper-masculinity
killings, “honor killings” are more a matter of verbiage than a culturally distinct
category of crime. See Soraya Chemaly, Mass Killings in the US: Masculinity,
Masculinity, Masculinity, The Huffington Post, Blog (Oct. 5, 2015),
http://www.huffingtonpost.com/soraya-chemaly/mass-killings-in-the-usw_b_8234322.html (noting that “[d]uring the last 30 years, all but one of the mass
murders in the U.S. was committed by men, 90 percent of whom were white,” and
finding that mass killings disproportionately target women and are motivated
partially by anti-feminist sentiment).
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differences,” and “[f]undamentally, [it will be] the same, basic policy outcome for
the country.”36 And much like the original,37 the revised Executive Order is
steeped in a background of the President’s discriminatory statements that, without
any evidence whatsoever, perpetuated the stereotype that people of Muslim faith
are largely terrorists seeking to harm the United States.38 President Trump has

36

Taylor Link, Stephen Miller admits the new executive order on immigration ban
is same as the old, SALON, Feb. 22, 2017,
http://www.salon.com/2017/02/22/stephen-miller-admits-the-new-executive-orderon-immigration-ban-is-same-as-the-old/.
37

Both the Court of Appeals for the Ninth Circuit and the District Court for the
Eastern District of Virginia noted the potential discriminatory purpose in deciding
to enjoin the implementation of the January 29, 2017 Executive Order. Trump,
847 F.3d at 1167 (finding “statements by the President about his intent to
implement a ‘Muslim ban’ as well as evidence [the state of Washington] claim
suggests that the Executive Order was intended to be that ban” to defeat the
Government’s likelihood of success on appeal of the injunction); Aziz et al. v.
Trump et al., 2017 WL 580855, at *8 (E.D. Va., Feb. 13, 2017) (“The ‘Muslim
ban’ was a centerpiece of the president’s campaign for months, and the press
release calling for it was still available on his website as of the day this
Memorandum Opinion is being entered.”).
38

See, e.g., Press Release, Trump-Pence, Donald J. Trump Statement on
Preventing Muslim Immigration (Dec. 8, 2015),
https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration (visited on Feb. 16, 2017). (campaign website that
to this day still calls for a “shutdown of Muslims entering the United States”);
David Brody, Brody File Exclusive: Donald Trump Says Something in Koran
Teaches a ‘Very Negative Vibe’, CBN News (Apr. 12, 2011),
http://www1.cbn.com/thebrodyfile/archive/2011/04/12/brody-file-exclusivedonaldtrump-says-something-in-koran-teaches; Interview of Donald Trump on
CBN News, YouTube (Apr. 11, 2011),
https://m.youtube.com/watch?v=fWzDAvemJG8 (arguing that there is a “Muslim
problem” in the United States, and suggesting that the Koran teaches a “very
negative vibe” and “tremendous hatred”); Theodore Schleifer, Donald Trump: ‘I
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repeatedly called for: shutting down mosques in the United States,39 suspicionless
surveillance of Muslims in mosques,40 a registry for all practicing Muslims,41 racial
think Islam hates us’, CNN (Mar. 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/ (stating that
Muslims have “tremendous hatred” and “unbelievably hatred” and refusing to
draw a distinction between radical Islam and Islam, claiming “[i]t’s very hard to
define”).
39

Jenna Johnson, Donald Trump would ‘strongly consider’ closing some mosques
in the United States, Wash. Post (Nov. 16, 2015),
https://www.washingtonpost.com/news/postpolitics/wp/2015/11/16/donald-trumpwould-strongly-consider-closing-some-mosquesin-the-united-states/; Nick Gass,
Trump: ‘Absolutely no choice’ but to close mosques, Politico (Nov. 18, 2015),
http://www.politico.com/story/2015/11/trump-close-mosques-216008; Fox News,
“Trump says US will ‘have no choice’ but to shut some mosques down (Nov. 18,
2015), http://www.foxnews.com/politics/2015/11/17/trump-says-us-will-have-nochoice-but-toshut-mosques-down.html.
40

Lauren Carroll, In Context: Donald Trump’s comments on a database of
American Muslims, Politifact (Nov. 24, 2015),
http://www.politifact.com/truth-o- meter/article/2015/nov/24/donaldtrumps-comments-database-american-muslims/; Louis Jacobson, Donald
Trump says he never called for profiling Muslims, Politifact (Sept. 21,
2016), http://www.politifact.com/truth-ometer/statements/2016/sep/21/donald- trump/donald-trump-says-he-nevercalled-profiling-muslim/.
41

Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws
Comparison to Nazi Germany, NBC News (Nov. 20, 2015),
http://www.nbcnews.com/politics/2016-election/trump-says-he-wouldcertainly-implement-muslim-database-n466716. On December 21, 2016,
more than a month after being elected President, Mr. Trump responded to a
question about whether he was rethinking his plan for a Muslim registry
by stating: “You know my plans all along, and I’ve been proven to be
right.” Video, Trump: ‘You’ve known my plans’ on proposed Muslim ban,
Wash. Post (Dec. 21, 2016),
https://www.washingtonpost.com/video/politics/trump-youve-known-myplans-on-proposed-muslim-ban/2016/12/21/8a7bba66-c7ba-11e6-acda59924caa2450_video.html.
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profiling of all Muslims,42 and a total ban of Muslims coming to the United
States.43
The administration’s attempts to cloak this discriminatory intent in
neutral language are unavailing. In July 2016, President Trump telegraphed his
aim to disguise the language of the Muslim ban to pass legal muster, when he
noted that he would refer to the Muslim countries on the basis of geographic
location rather than religious majority, because “[p]eople were so upset when [he]
used the word Muslim.”44 Rather than a “rollback” of previous calls for a Muslim
ban, President Trump has characterized the Administration’s new approach as an
“expansion” of his prior rhetoric.45 A prominent advisor to then-candidate
Trump’s campaign, Rudolph W. Giuliani recounted that President Trump wanted a
“Muslim ban” and had requested that Mr. Giuliani assemble a commission to show

42

Transcript, Face the Nation, CBS News (Jun. 19, 2016),
http://www.cbsnews.com/news/face-the-nation-transcripts-june-19-2016-trumplynch- lapierre-feinstein/.
43

Politico, Full text: Donald Trump 2016 RNC draft speech transcript (July 21,
2016) http://www.politico.com/story/2016/07/full-transcript-donald-trumpnomination- acceptance-speech-at-rnc-225974.
44

Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13,
2016), https://www.c-span.org/video/?410976-1/donald-trump-delivers-remarksnational- security-threats.
45

Id.

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him “the right way to do it legally.”46 Plainer evidence of animus against Muslims
would be difficult to find. See Department of Agriculture v. Moreno, 413 U.S.
528, 534 (1973) (“[I]f the constitutional conception of ‘equal protection of the
laws’ means anything, it must at the very least mean that a bare . . . desire to harm
a politically unpopular group cannot constitute a legitimate government
interest.”).47

46

Trump asked for a Muslim Ban Giuliani says – and ordered a commission to do
it ‘legally,’ Wash. Post (Jan. 29, 2017),
https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-amuslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.82e451dca6b8.
47

Even if this was not the purpose, the indisputable perception of sect favoritism
violates the Establishment Clause. See McCreary, 545 U.S. at 883 (O’Connor, J.,
concurring) (finding violation of Establishment Clause because of “unmistakable
message of endorsement to the reasonable observer”); Cty. of Allegheny v. ACLU
Greater Pittsburgh Chapter, 492 U.S. 573, 593-94 (1989) (“The Establishment
Clause, at the very least, prohibits government from appearing to take a position on
questions of religious belief or from ‘making adherence to a religion relevant in
any way to a person’s standing in the political community.’”) (quoting Lynch v.
Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)). And the public
perception of the original Executive Order is clear: it is a Muslim ban. See Public
Policy Polling, After 2 Weeks, Voters Yearn For Obama 1, 4 (Feb. 2, 2017)
(finding in poll conducted on January 30-31, 2017 that “52% of voters think that
the order was intended to be a Muslim ban, to only 41% who don't think that was
the intent”), https://goo.gl/1L5psC. See also CNN/ORC Int’l Poll 9 (Feb. 3, 2017)
(55% think the Executive Order “is a ban on Muslims”), https://goo.gl/0xE98B.
Although public polling regarding the new ban has not been conducted,
“reasonable observers have reasonable memories, and our precedents sensibly
forbid an observer to turn a blind eye to the context in which the [policy] arose.”
McCreary, 545 at 866 (internal citation omitted).
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The Administration’s proffered interest in securing our borders is also
merely pretextual, as the Order is both under and over inclusive. A statute or rule
that is under and over inclusive in burdening a constitutionally protected interest is
not narrowly tailored to achieve a compelling state interest, as required to satisfy
the Equal Protection and Establishment Clauses. See, e.g., Miller v. Johnson, 515
U.S. 900, 904 (1995). The Executive Order recites that its purpose is to “protect”
its “citizens from terrorist attacks,” and asserts that the targeted countries were
identified as presenting “heightened concerns about terrorism and travel to the
United States.”48 Yet by excluding hundreds of thousands of innocent refugees
without a whiff of suspicion that they pose any danger, the Executive Order is
wildly over-inclusive. See Romer, 517 U.S. at 632 (finding that a law failed
rational basis review where “its sheer breadth is so discontinuous with the reasons
offered for it that the amendment seems inexplicable by anything but animus
toward the class that it affects”). The Executive Order does not provide any
process to determine whether potential immigrants or refugees pose a threat. It
simply denies them the opportunity even to apply for admission if they originate
from the countries on the list.
Furthermore, the Executive Order is dramatically under-inclusive.
Despite the proffered interest in security, the Executive Order does not include on
48

Executive Order § 1(a)-(b).

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its list of affected countries any of the home countries of the perpetrators of the
September 11th, 2001 attacks.49 Nor does it include countries connected to the
perpetrators of more recent domestic attacks in San Bernadino, New Jersey or New
York, Orlando, or Boston.50 And tellingly, the Executive Order does not include
any of the majority-Christian nations that are listed by the State Department as
“terrorist safe havens.”51 See Larson, 456 U.S. at 244 (“[T]his Court has adhered
to the principle, clearly manifested in the history and logic of the Establishment
Clause, that no State can pass laws which aid one religion or that prefer one
religion over another.”) (internal citation and quotation marks omitted). Such
under-inclusiveness also demonstrates discriminatory animus, as it reveals that the
state’s proffered interest is a pretext for animus against people of the Muslim faith.
See Lukumi, 508 U.S. at 543.

49

Linda Qiu, Fact-Checking Claims About Trump’s Travel Ban, N.Y. Times (Feb.
23, 2017), https://www.nytimes.com/2017/02/23/us/politics/fact-checking-claimsabout-trumps-travel-ban.html (“[A]ll 12 jihadist terrorist who have killed people
in the United States since Sept. 11, 2001, were American citizens or permanent
residents, and none had ties to the seven countries named in Mr. Trump’s executive
order. Out of the nearly 400 non-deadly jihadist terrorist attacks on American soil
since 9/11, perpetrators were linked to Iran or Somalia in three cases.”).
50

Eric Levenson, How many fatal terror attacks have refugees carried out in the
US? None, CNN (Jan. 29, 2017), http://www.cnn.com/2017/01/29/us/refugeeterrorism-trnd/.
51

Chapter 5: Terrorist Safe Havens (Update to 7120 Report), U.S. Dept. of State,
https://www.state.gov/j/ct/rls/crt/2015/257522.htm.
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CONCLUSION
For the foregoing reasons, the Executive Order exceeds the scope of
presidential authority under the INA and violates the Equal Protection and
Establishment Clauses of the Constitution. It should therefore be enjoined from
further implementation.
DATED: Honolulu, Hawai`i, March 14, 2017.
Respectfully submitted,
/s/Claire Wong Black
J. BLAINE ROGERS
CLAIRE WONG BLACK
STEVEN E. OBUS
SETH D. FIUR
TIFFANY M. WOO
TERRANCE J. NOLAN
Attorneys for amici curiae
NEW YORK UNIVERSITY

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