Federal Appeals Court Upholds Block of Trump’s Revised Travel Ban

By Mark Walsh — May 25, 2017 3 min read

In a case being watched by some education groups, a federal appeals court on Thursday largely upheld an injunction against President Donald Trump’s executive order temporarily barring U.S. entry to those from six predominantly Muslim countries. The case could be soon headed to the U.S. Supreme Court.

Some education groups, including the American Federation of Teachers and the American Association of University Professors, have filed briefs in support of challenges to the so-called travel ban. And the executive order is part of the Trump administration’s stricter approach to a range of immigration issues in ways that have trickled down to schools.

The full U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., framed the case as asking whether the U.S. Constitution “protects plaintiffs’ right to challenge an executive order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

“Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another,” said the majority opinion by Chief Judge Roger L. Gregory in the 10-3 ruling in International Refugee Assistance Project v. Trump.

After his initial executive order on the subject was blocked in the courts, the president on March 6 signed a second order that bars entry to nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, because of “heightened threats” of terrorism based on conditions in those countries. (Iraq was eliminated from the ban after appearing in the first order.)

Challengers of the executive order point to statements made by Trump as a presidential candidate indicating his intentions to target Muslims for greater immigration scrutiny.

The AFT, in a friend-of-the-court brief on the challengers’ side along with the Service Employees International Union and the American Federation of State, County, and Municipal Employees, says that “many foreign-born AFT members, in particular those who are from any of the six Muslim-majority countries targeted in the EO, no longer feel that they can travel freely outside of the U.S., whether it is for work or to visit a dying relative.”

“These members fear that they will not be able to return to the U.S. to resume their professional and personal lives,” the AFT brief says.

The AAUP brief says the executive order “undermines American universities’ ability to attract and admit students and scholars from Muslim-majority nations and threatens their mission to prepare students for a global marketplace through exposure to scholars and students from every region of the planet, including from Muslim-majority nations.”

Countries covered by the travel ban sent more than 15,000 students and scholars to U.S. higher education institutions in 2015-16, the brief says.

The three dissenting judges signed an opinion that said the majority gave too much consideration to the role of campaign statements in a later presidential executive order. And they said the majority was “radically extending” U.S. Supreme Court precedents on government establishment of religion.

Judge Paul V. Niemeyer, in the dissenting opinion, cited several Supreme Court decisions on religion and public education. In rulings striking down voluntary student prayers at football games, a minute of meditation or voluntary prayer at the beginning of the school day, and a law requiring that creationism be taught alongside evolution, Niemeyer said, the high court found the government actions “inexplicable but for a religious purpose.”

“The executive order in this case fits nowhere within this line,” the dissent says. “It is framed and enforced without reference to religion, and the government’s proffered national security justifications, which are consistent with the stated purposes of the order, withstand scrutiny.”

The president’s revised travel ban is also being challenged in a Hawaii case that is pending before a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco. That court heard arguments on May 15.

Any 9th Circuit decision could face further proceedings in that court. But with the decision by the full 4th Circuit, the president’s executive order is one step closer to review in the Supreme Court.

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

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