State of Washington, et al., v. Trump., et al

Filing 145

MOTION for Leave to File Amicus Curiae Brief, filed by Amicus New York University. Noting Date 3/14/2017, (Smith, Catherine)

Honorable James L. Robart

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9

STATE OF WASHINGTON, et al.

10
11
12
13
14
15
16

Plaintiffs,
vs.
DONALD 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 the
Department of Homeland Security; TOM
SHANNON, in his official capacity as
Acting Secretary of State; and the UNITED
STATES OF AMERICA

MOTION FOR LEAVE TO FILE
AMICUS BRIEF BY NEW YORK
UNIVERSITY
NOTE ON MOTION CALENDAR:
March 14, 2017

Defendants.

17
18
19

Case No. 2:17-cv-00141-JLR

I.

INTRODUCTION

New York University (“NYU”) seeks the Court’s permission to file a brief of amicus

20

curiae, in support of the Plaintiffs’ Emergency Motion to Enforce Preliminary Injunction

21

[Dkt. 119] in the above-referenced matter. A copy of the proposed brief is attached as

22

Exhibit 1 to this motion.

23

II.

24
25

IDENTITY AND INTERESTS OF THE AMICUS CURIAE

NYU has an especially strong interest in this matter. As of 2016, NYU hosted more
international students than any other university in the United States. International students
NEW YORK UNIVERSITY’S MOTION
FOR LEAVE TO FILE AMICUS BRIEF - 1
Case No. 2:17-cv-00141-JLR

SMITH GOODFRIEND, P.S.
1619 8TH AVENUE NORTH
SEATTLE, WASHINGTON 98109

[phone]

FAX (206)

624-0809

1

constituted 35% of NYU’s graduate student population and 18% of its undergraduate student

2

population. This includes approximately 120 students and ten scholars from the six countries

3

named in the March 6, 2017 Executive Order titled “Protecting the Nation from Foreign

4

Terrorist Entry into the United States” (the “Executive Order”), which is the subject of these

5
6
7
8
9
10
11
12
13

continuing proceedings. NYU is deeply concerned that the Executive Order will have a
significant adverse impact not merely on its numerous current and prospective international
students and scholars, but on the ability of the University as a whole to fulfill its mission as a
global educational institution for all of its constituents, “fitting for all and graciously open to
all.” See NYU Mission Statement, available at www.nyu.edu/about. Because this Court’s
decisions may have far-reaching implications that will substantially affect NYU’s mission
and educational aims, NYU seeks leave to submit arguments reflective of this litigation’s
vital importance to the University.
III.

ARGUMENT IN SUPPORT OF LEAVE TO FILE

District courts have “broad discretion” to appoint amicus curiae. Skokomish Indian

14

Tribe v. Goldmark, No. C13-5071JLR, 2013 WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013)

15

(Robart, J.). Amicus participation is especially appropriate where the ramifications of the

16

decision extend beyond the parties. Id. Amicus contribution can be in the form of “ideas,

17

arguments, theories, insights, facts or data that are not to be found in the parties’ briefs.” See

18

Commonwealth of the N. Mariana Islands v. United States, No. CIVA 08-1572 PLF, 2009

19

WL 596986, at *3-4 (D.D.C. Mar. 6, 2009). In the past, this Court has granted leave to

20

organizations to participate as amici that had “a particular perspective that may not otherwise

21

be before the court.” Microsoft Corp. v. United States Dep't of Justice, No. C16-0538JLR,

22
23
24

2016 WL 4506808, at *27 (W.D. Wash. Aug. 29, 2016).
NYU’s amicus brief would provide the Court with NYU’s unique perspective as a
global university based in New York City.

25
NEW YORK UNIVERSITY’S MOTION
FOR LEAVE TO FILE AMICUS BRIEF - 2
Case No. 2:17-cv-00141-JLR

SMITH GOODFRIEND, P.S.
1619 8TH AVENUE NORTH
SEATTLE, WASHINGTON 98109

[phone]

FAX (206)

624-0809

1

The ability to attract students and scholars from a wide variety of backgrounds is

2

crucial to NYU’s success as an educational institution. In support of its mission, NYU has

3

invested significant resources towards its status as a “Global Network University,” with

4

members of its community learning and teaching worldwide, including at its own campuses

5
6
7
8

and at partner campuses on nearly every continent. As described more fully in the attached
brief, implementation of the Executive Order threatens NYU’s central educational aims by
encumbering its ability to conduct its many international programs, impairing its ability to
transmit its strongly-held values abroad, and obstructing its ability to provide to all of its
students the educational benefits that flow from a fully diverse student body and faculty.

9
We ask the Court to exercise its discretion to permit NYU to file the attached amicus
10
11
12

brief. NYU will focus on the detrimental effect the Executive Order has had and will
continue to have on the NYU’s students and faculty, and on the achievement of NYU’s
institutional goals.

13
14
15
16
17

IV.

CONCLUSION

For the foregoing reasons, NYU respectfully requests the Court’s permission to file
the brief of amicus curiae attached as Exhibit 1 on or before a date set by the Court.
DATED this 14th day of March, 2017.
PROSKAUER ROSE LLP

SMITH GOODFRIEND, P.S.

By: /s/ Steven E. Obus
/s/Seth D. Fiur
/s/Tiffany M. Woo

By: /s/ Catherine W. Smith
WSBA No. 9542
/s/ Howard M. Goodfriend
WSBA No. 14355

Eleven Times Square
New York, New York 10036
SObus @proskauer.com
[e-mail]
[e-mail]

1619 8th Avenue North
Seattle, WA 98109
[phone]
[e-mail]
[e-mail]

18
19
20
21
22
23
24
Attorneys for Amicus New York University
25
NEW YORK UNIVERSITY’S MOTION
FOR LEAVE TO FILE AMICUS BRIEF - 3
Case No. 2:17-cv-00141-JLR

SMITH GOODFRIEND, P.S.
1619 8TH AVENUE NORTH
SEATTLE, WASHINGTON 98109

[phone]

FAX (206)

624-0809

1
2
3
4

OF COUNSEL:
Terrance J. Nolan
General Counsel and Secretary
New York University
70 Washington Square South, 11th floor
New York, New York 10012

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
NEW YORK UNIVERSITY’S MOTION
FOR LEAVE TO FILE AMICUS BRIEF - 4
Case No. 2:17-cv-00141-JLR

SMITH GOODFRIEND, P.S.
1619 8TH AVENUE NORTH
SEATTLE, WASHINGTON 98109

[phone]

FAX (206)

624-0809

1
CERTIFICATE OF SERVICE
2
3
4
5

I hereby certify that on March 14, 2017, I electronically filed the foregoing Motion for
Leave to File Amicus Brief by New York University with the Clerk of the Court for the
United States District Court, Western District of Washington using the CM/ECF
system, which will send notification of such filing to all counsel of record.
DATED at Seattle, Washington this 14th day of March, 2017.

6
s/ Tara D. Friesen

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
NEW YORK UNIVERSITY’S MOTION
FOR LEAVE TO FILE AMICUS BRIEF - 5
Case No. 2:17-cv-00141-JLR

SMITH GOODFRIEND, P.S.
1619 8TH AVENUE NORTH
SEATTLE, WASHINGTON 98109

[phone]

FAX (206)

624-0809

1

THE HONORABLE JAMES L. ROBART

2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

9
10
11
12

STATE OF WASHINGTON and STATE OF
MINNESOTA,
Plaintiffs,

13
14
15
16
17
18
19
20

vs.
DONALD 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 the Department of
Homeland Security; REX TILLERSON, in
his official capacity as Secretary of State; and
the UNITED STATES OF AMERICA,
Defendants.

21
22
23
24
25
26
27
28

CIVIL ACTION NO. 2:17-CV-00141JLR

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER
Case No. 2:17-cv-00141-JLR

BRIEF OF NEW YORK UNIVERSITY
AS AMICUS CURIAE IN SUPPORT
OF PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING
ORDER
NOTE ON MOTION CALENDAR:
March 14, 2017

1

TABLE OF CONTENTS

2

INTEREST OF AMICUS .................................................................................................. 1

3
4
5

INTRODUCTION AND SUMMARY OF THE ARGUMENT ...................................... 2
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............................................................................................... 5

III.

10

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. ........... 11

11

CONCLUSION ............................................................................................................... 20

6
7
8
9

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - i
Case No. 2:17-cv-00141-JLR

1

TABLE OF AUTHORITIES

2

CASES .................................................................................................................... PAGE(S)

3

Arce v. Douglas,
793 F.3d 968 (9th Cir. 2015) .................................................................................... 12

4
5

Aziz et al. v. Trump et al.,
2017 WL 580855 (E.D. Va., Feb. 13, 2017) ............................................................. 17

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Bery v. City of N.Y.,
97 F.3d 689 (2d Cir. 1996).......................................................................................... 7
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
512 U.S. 687 (1994) ................................................................................................. 13
Bolling v. Sharpe,
347 U.S. 497 (1954) .................................................................................................. 12
Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993) ...................................................................................... 15, 16, 20
Clark v. Jeter,
486 U.S. 456 (1988) .................................................................................................. 12
Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter,
492 U.S. 573 (1989) .................................................................................................. 19
Department of Agriculture v. Moreno,
413 U.S. 528 (1973) .................................................................................................. 18
Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) ...................................................................................... 6, 7, 10
Grutter v. Bollinger,
539 U.S. 306 (2003) ................................................................................................ 6, 7
Hassan v. City of New York,
804 F.3d 277 (3d Cir. 2015)...................................................................................... 13
Jana-Rock Const., Inc., v. N.Y. State Dep’t of Econ. Dev.,
438 F.3d 195 (2d Cir. 2006)...................................................................................... 12
Keyishian v. Bd. of Regents of Univ. of State of N.Y.,
385 U.S. 589 (1967) .................................................................................................... 6
NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - ii
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11

Larson v. Valente,
456 U.S. 228 (1982) ............................................................................................ 12, 20
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995) .................................................................................... 13
Lynch v. Donnelly,
465 U.S. 668 (1984) ................................................................................................. 19
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ............................................................................................ 12, 19
Miller v. Johnson,
515 U.S. 900 (1995) .................................................................................................. 19
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) .......................................................................................... 6, 7, 11
Romer v. Evans,
517 U.S. 620 (1996) ...................................................................................... 16, 19, 25

12
13
14
15
16

Sweezy v. New Hampshire,
354 U.S. 234 (1957) ................................................................................................. 11
Vill. of Arlington Heights v. Metro Hous. Dev. Corp.,
429 U.S. 252 (1977) .................................................................................................. 12
Washington v. Trump,
847 F. 3d 1151 (9th Cir. 2017) ............................................................................. 6, 17

17
18
19
20
21

STATUTES
8 U.S.C. § 1152(a)(1)(A) ................................................................................................ 13
8 U.S.C. § 1182(f) ........................................................................................................... 14
Immigration and Nationality Act of 1965 ................................................................ passim

22
23
24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - iii
Case No. 2:17-cv-00141-JLR

1

INTEREST OF AMICUS

2

Amicus New York University (“NYU”) is an institution of higher learning

3

headquartered in New York City, with campuses on nearly every continent. A critical

4

component of its global mission is to create an environment that fosters achievement

5

borne of the free exchange of ideas and information. By welcoming and engaging

6

students and scholars from the broadest range of backgrounds and nationalities, NYU is

7

able to advance that mission.

8

As a global university centered in New York City—one of the world’s most

9

internationally diverse cities—NYU has a vital interest in the proper administration,

10

within constitutional limits, of the immigration laws of the United States. NYU is deeply

11

concerned that the Executive Order issued by the President on March 6, 2017, titled

12

“Protecting the Nation from Foreign Terrorist Entry into the United States” (the

13

“Executive Order”), like its immediate predecessor, exceeds those limits. If allowed to

14

stand, it would impair unique educational opportunities that NYU is otherwise able to

15

provide, and thus inflict harm on the university, on its constituents, and on the

16

community at large.

17
18
19
20
21
22
23
24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 1
Case No. 2:17-cv-00141-JLR

1

INTRODUCTION AND SUMMARY OF THE ARGUMENT

2

Thousands of prospective students apply to NYU every year, seeking the

3

opportunity to study at one of the most internationally diverse universities in the world.

4

At the core of NYU’s institutional mission are the twin aims of providing an exceptional

5

academic experience for its students and fostering world-class international scholarship.

6

NYU has invested significant resources in developing an environment in which its

7

diverse student body and faculty can thrive, for the benefit of the academic community,

8

the United States, and the world. Implementation of the Executive Order will

9

significantly undermine these efforts.

10

By obstructing the entry of international students, faculty and other scholars into

11

the United States based solely on their having come from one of the Muslim-majority

12

countries singled out for adverse treatment in the Executive Order—without any reason

13

to believe that the individuals are involved at all in any terrorist activity—the Order will

14

gratuitously and unlawfully encumber NYU’s ability to conduct its many international

15

programs, which rely on input from faculty and students from the affected countries;

16

impair its ability to transmit its strongly-held values abroad; and obstruct its ability to

17

provide to all of its students the educational benefits that flow from a fully diverse

18

student body and faculty. For these reasons, among others, implementation of the

19

Executive Order should be halted.

20
21
22
23
24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 2
Case No. 2:17-cv-00141-JLR

1
2

ARGUMENT
I.

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

3

Mission.

4

NYU is a “Global Network University,” with campuses around the world,

5

including in Africa, Asia, Europe, North America and South America.1 These campuses

6

offer to all NYU students a range of multi-disciplinary opportunities for research,

7

teaching and scholarly collaboration. In addition to developing its own campuses, NYU

8

has partnered with numerous schools worldwide both to create educational opportunities

9

for international students and scholars,2 and to expose its domestic students to the vast

10

wealth of experience and knowledge that can be gained by traveling, researching and

11

studying abroad.3

12

Attracting to the United States international students and scholars from a wide

13

variety of backgrounds is intrinsic to NYU’s success as an educational institution. To

14

that end, NYU has made it a priority to “embrace diversity among faculty, staff and

15

students to ensure a wide range of perspectives, including international perspectives, in

16

the educational experience.”4 Its efforts have been highly successful—in 2015-2016,

17
18
19
20
21
22
23
24
25

1

See NYU, The Global Network, available at https://www.nyu.edu/faculty/governance-policiesand-procedures/faculty-handbook/the-university/organization-and-administration/the-global-network.html.
2

See Global Academic Partnerships and affiliations, NYU (March 2, 2016), available at
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), available at https://www.nyu.edu/faculty/globalacademic-partnerships-and-affiliations/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/studying-abroad/exchange/internationalexchange.html; Stern IBEX
(International Business Exchange), NYU, https://www.nyu.edu/academics/studying-abroad/exchange/sternibex-international-business-exchange.html.
4

26
27
28

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

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 3
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14

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
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

15
16
17
18
19
20
21

5

NYU Office of Global Services, Annual Report: September 1, 2015 - August 31, 2016, available
at 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.
7

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

22

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.

23

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

24
25
26
27
28

9

Thomas P. DiNapoli, “The Role of Immigrants in the New York City Economy,” New York
State Comptroller Report 7-2016 (Nov. 2015), available at 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 . . . .”).
10

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 4
Case No. 2:17-cv-00141-JLR

1
2

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.

3
4
5
6
7
8

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:

9
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

10
11
12
13
14
15
16
17
II.
18
19

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

20
21
22
23
24

11

Students Share International Experiences at Global Engagement Symposium, NYU Arts &
Liberal Studies (March 20, 2015), available at 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 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

25
26
27
28

Letter from Dr. Andrew Hamilton to NYU Community (Jan. 29, 2017), available at
http://www.nyu.edu/about/leadership-university-administration/office-of-thepresident/communications/the-recent-executive-order-on-immigration.html.

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 5
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

individuals pose the slightest threat to the national security of the 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 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
NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 6
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

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. 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

18
19
20
21
22
23
24
25
26
27
28

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, available at 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, available
at 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”).

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 7
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

radicalization.15 Reducing this cross-cultural exchange will deprive NYU of
opportunities to share those key 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 affected by the Executive Order.18 The Center also

16
17
18
19
20
21
22
23
24
25
26
27
28

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 anti-immigrant
attitudes in adolescence: The role of parents, peers, intergroup friendships, and empathy,” British Journal of
Psychology (2017), available at 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”).
16

See, e.g., Study Away in the US and Around the World, Studying Abroad | NYU, available at
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, available at
http://neareaststudies.as.nyu.edu/page/about.
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

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 8
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14

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 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

15
16
17
18
19
20
21
22
23
24
25
26
27
28

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, available at
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, available at
http://neareaststudies.as.nyu.edu/object/kc.events.brides.side; Not Who We Are, Visual Culture, Loss and
Resilience, New York University, available at
http://neareaststudies.as.nyu.edu/object/kc.events.notwhoweare.
19

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

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),
available at https://www.unaoc.org/2017/02/remarks-11th-plenary-session-parliamentary-assembly-of-themediterranean/ (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”).

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 9
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

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.
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

19
20
“MEIS Statement on Executive Order to Limit Entry of Middle Eastern Refugees and
Immigrants,” MEIS | New York University, available at
http://meis.as.nyu.edu/object/statement_executive_order.
21

21
22
23

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.”).
22

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.”).
23

24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 10
Case No. 2:17-cv-00141-JLR

1
2

one second.” After saving money for the 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

3
4
5
6
7
8
9
10

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.

11
12
13
14
15
16
17
18
19
20
21
22

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, 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.

23
24

24

Id.

25

Executive Order § 1(i).

26

See Executive Order § 2(c).

25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 11
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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 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
NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 12
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

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”), 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 (D.C. Cir. 1995) (holding that

19
20
21
22
23
24
25
26
27
28

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”).

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 13
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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.
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
NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 14
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11

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 “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

12
13
14

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%).
29

30

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Id.

31

Executive Order § 11(iii).

32

Id. § 11(ii).

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), available at
https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/01/25/executiveorder-protecting-the-nation-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.”).
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),
available at http://origin-nyi.thehill.com/blogs/pundits-blog/immigration/320632-trumps-mention-ofhonor-killings-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), available at
https://www.theatlantic.com/politics/archive/2017/03/honor-killings-trump/518766/ (“The term itself is
34

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 15
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14

the Establishment Clause and Equal Protection Clause. See 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 differences,” and “[f]undamentally,
[it will be] the same, basic policy outcome for the country.”36 And much like the

15
16
17
18
19

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.’”).
35

20
21
22
23
24

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), available at
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), available at http://www.huffingtonpost.com/sorayachemaly/mass-killings-in-the-us-w_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).
36

25
26
27
28

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-executiveorder-on-immigration-ban-is-same-as-the-old/.

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 16
Case No. 2:17-cv-00141-JLR

1
2
3
4
5

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 repeatedly called for: shutting down mosques in the
United States,39 suspicionless surveillance of Muslims in mosques,40 a registry for all

6
7
8
9
10
11
12
13
14
15
16
17
18
19

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 v. Trump., 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-exclusive-donaldtrump-says-somethingin-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 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”).
Jenna Johnson, Donald Trump would ‘strongly consider’ closing some mosques in the United
States, Wash. Post (Nov. 16, 2015), available at
https://www.washingtonpost.com/news/postpolitics/wp/2015/11/16/donald-trump-would-stronglyconsider-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),
available at http://www.foxnews.com/politics/2015/11/17/trump-says-us-will-have-no-choice-but-toshutmosques-down.html.
39

20
21
22
23

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/donald-trumpscomments-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-never-called-profiling-muslim/.
40

24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 17
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13

practicing Muslims,41 racial 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 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,

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

41
Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi
Germany, NBC News (Nov. 20, 2015), available at http://www.nbcnews.com/politics/2016election/trump-says-he-would-certainly-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), available at https://www.washingtonpost.com/video/politics/trump-youve-known-my- planson-proposed-muslim-ban/2016/12/21/8a7bba66-c7ba-11e6-acda- 59924caa2450_video.html.
42

Transcript, Face the Nation, CBS News (Jun. 19, 2016), http://www.cbsnews.com/news/facethe-nation-transcripts-june-19-2016-trump-lynch- 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-trump-nomination- acceptance-speech-at-rnc225974.
44
Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13, 2016),
https://www.c-span.org/video/?410976-1/donald-trump-delivers-remarks-national- security-threats.
45

Id.

Trump asked for a Muslim Ban Giuliani says – and ordered a commission to do it ‘legally,’
Wash. Post (Jan. 29, 2017), available at https://www.washingtonpost.com/news/thefix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.82e451dca6b8.
46

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 18
Case No. 2:17-cv-00141-JLR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

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
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

17
18
19
20
21
22
23
24
25

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).
48

26
27
28

Executive Order § 1(a)-(b).

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 19
Case No. 2:17-cv-00141-JLR

1
2
3
4

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

5

proffered interest in security, the Executive Order does not include on its list of affected

6

countries any of the home countries of the perpetrators of the September 11th, 2001

7

attacks.49 Nor does it include countries connected to the perpetrators of more recent

8

domestic attacks in San Bernadino, New Jersey or New York, Orlando, or Boston.50 And

9

tellingly, the Executive Order does not include any of the majority-Christian nations that

10

are listed by the State Department as “terrorist safe havens.”51 See Larson, 456 U.S. at

11

244 (“[T]his Court has adhered to the principle, clearly manifested in the history and

12
13

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

14
15

state’s proffered interest is a pretext for animus against people of the Muslim faith. See
Lukumi, 508 U.S. at 543.

16
17
18
19

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.

20
Linda Qiu, Fact-Checking Claims About Trump’s Travel Ban, N.Y. Times (Feb. 23, 2017),
available at https://www.nytimes.com/2017/02/23/us/politics/fact-checking-claims-about-trumps-travelban.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.”).
49

21
22
23
24
25
26
27
28

50
Eric Levenson, How many fatal terror attacks have refugees carried out in the US? None, CNN
(Jan. 29, 2017), available at http://www.cnn.com/2017/01/29/us/refugee-terrorism-trnd/.
51

Chapter 5: Terrorist Safe Havens (Update to 7120 Report), U.S. Dept. of State, available at
https://www.state.gov/j/ct/rls/crt/2015/257522.htm.

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 20
Case No. 2:17-cv-00141-JLR

1

DATED this 14th day of March, 2017.

2
3
4
5

PROSKAUER ROSE LLP

SMITH GOODFRIEND, P.S.

By: /s/ Steven E. Obus
/s/Seth D. Fiur
/s/Tiffany M. Woo

By: /s/ Catherine W. Smith
WSBA No. 9542
/s/ Howard M. Goodfriend
WSBA No. 14355

Eleven Times Square
New York, New York 10036
SObus @proskauer.com
[e-mail]
[e-mail]

1619 8th Avenue North
Seattle, WA 98109
[phone]
[e-mail]
[e-mail]

6
7
8
9
10

Attorneys for Amicus New York University

11
12

OF COUNSEL:

13

Terrance J. Nolan
General Counsel and Secretary
New York University
70 Washington Square South, 11th floor
New York, New York 10012

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 21
Case No. 2:17-cv-00141-JLR

1

CERTIFICATE OF SERVICE

2
3
4
5
6

I hereby certify that on March 14, 2017, I electronically filed the foregoing Brief of
New York University as Amicus Curiae in Support of Plaintiffs’ Motion for
Temporary Restraining Order, with the Clerk of the Court for the United States
District Court, Western District of Washington using the CM/ECF system, which
will send notification of such filing to all counsel of record.
DATED at Seattle, Washington this 14th day of March, 2017.

7

s/ Tara D. Friesen

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

NEW YORK UNIVERSITY’S AMICUS
CURIAE IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER - 22
Case No. 2:17-cv-00141-JLR