Educators Pay Attention as Justices Take Up Trump’s U.S. Entry Ban

By Mark Walsh — April 23, 2018 4 min read
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Teachers’ unions, colleges and universities, and many higher education groups have all joined briefs challenging President Donald Trump’s restrictions on travel to the United States from six predominantly Muslim countries.

The case of Trump v. Hawaii (No. 17-965) will be taken up by the justices on Wednesday, as the final oral argument of the 2017-18 term, and with a decision expected by the end of June.

Both the American Federation of Teachers and the National Education Association have joined a friend-of-the-court brief by a host of labor organizations supporting the state of Hawaii in its challenge to the third version of the president’s executive action establishing an entry ban.

That presidential proclamation, issued in September, built on an earlier version of the so-called travel ban and is meant to be permanent. The current version applies to travelers from Chad, Iran, Libya, Somalia, Syria, and Yemen.

The AFT says in the labor brief that many of its members, “especially those at institutions of higher education, are involved in global collaborations and in teaching and research duties that are being disrupted and threatened by the proclamation. Additionally, a significant number of AFT members were born in, or have friends or family members in, countries named in the proclamation. These members are directly impacted by the travel restrictions, which have affected their ability to work, travel, connect with, and care for their communities.”

The NEA says in the brief that its “members believe that discrimination and stereotyping based on religion must be eliminated in all educational settings, and therefore work every day to increase respect, understanding, acceptance, and sensitivity among students. The proclamation has made that work harder, as it has fueled anti-Muslim hate speech and harassment in our nation’s schools.”

Both a federal district court in Hawaii and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, blocked the policy and held that the president likely exceeded his authority under immigration law and that the policy likely involves illegal discrimination based on nationality.

The 9th Circuit did not rule on the question of whether the policy violated the U.S. Constitution’s prohibition on government establishment of religion based on Trump’s various anti-Muslim statements. But another federal appeals court had so ruled with respect to an earlier version of the policy, and the Supreme Court said it would consider that question as part of its review.

Subsequent to the high court’s January announcement that it would take up the case, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., also blocked the current version of the entry ban, declaring that “on an economic level, the proclamation inhibits the normal flow of information, ideas, resources, and talent between the designated countries and our schools, hospitals, and businesses” and that “on a fundamental level, the proclamation second-guesses our nation’s dedication to religious freedom and tolerance.”

The Supreme Court decided not to add the 4th Circuit’s decision to the arguments, but the religious question will be addressed.

The Trump administration, in briefs filed by U.S. Solicitor General Noel J. Francisco, argues that Trump’s proclamation establishing the entry ban is a valid exercise of the president’s broad authority to regulate immigration under the Immigration and Naturalization Act.

The government also counters arguments that various statements by Trump, both as a presidential candidate and while serving in the White House, demonstrate the president’s anti-Muslim bias, including Trump’s retweeting of three anti-Muslim propaganda videos last November.

“The president’s retweets do not address the meaning of the proclamation at all,” Francisco says in a brief, adding that the challengers “also ignore the president’s many statements disclaiming religious animus and praising Islam.”

Francisco further argues that the third version of the entry ban’s omission of two Muslim-majority countries that were covered by two earlier versions, its tailored restrictions for each country based on country-specific risks, “and the fact that it does not cover the vast majority of Muslims in the world all show that the proclamation does not target aliens based on their religion.”

Hawaii, the main challenger to the entry ban, says in its brief that “the president’s order is without parallel in our nation’s history.”

“For over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States,” the brief continues. “And upon taking office, the president issued and reissued, and reissued again, a sweeping and unilateral order that purports to bar over 150 million aliens—the vast majority of them Muslim—from entering the United States.”

Besides the teachers’ unions and many other allies, a group of colleges and universities says in a friend-of-the-court brief on Hawaii’s side that the president’s proclamation threatens their “ability to attract persons not only from the specified countries, but from around the world.”

“It contradicts the values that [the colleges] have traditionally touted as benefits of studying and working here, including the freedom of religion and equality embodied in the First and Fourteenth Amendments,” says the brief, signed by the eight members of the Ivy League as well as 23 elite U.S. colleges and universities.

A brief also on Hawaii’s side by the American Council on Education and 32 other higher education groups says that more than 1 million international students attend U.S. colleges and universities.

The president’s proclamation “perpetuates the prior orders’ message of exclusion, which deters foreign students who wish to come to the United States to foster collaborative study,” the brief says.

A version of this news article first appeared in The School Law Blog.