A sharply divided U.S. Supreme Court on Tuesday upheld President Donald Trump’s proclamation restricting travel to the United States from residents of five predominantly Muslim countries, in a case being watched by educators.
The teachers’ unions, higher education groups, and at least 30 colleges and universities had joined friend-of-the-court briefs in support of the challenge to the so-called travel ban, which currently affects Iran, Libya, Somalia, Syria, and Yemen. Those groups argued that the entry restrictions have kept international students, teachers, and scholars out of the United States for higher education and for academic conferences.
But Chief Justice John G. Roberts Jr., writing for a 5-4 majority in Trump v. Hawaii (Case No 17-965), said, “The proclamation is squarely within the scope of presidential authority under” the Immigration and Nationality Act.
Furthermore, Roberts said, “the government has set forth a sufficient national security justification to survive” a review based on the challengers’ claim that the president’s anti-Muslim statements led the policy to violate the First Amendment’s prohibition against government establishment of religion.
“Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification,” Roberts said.
His opinion was joined by justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch, with Kennedy and Thomas writing short concurrences.
Justice Stephen G. Breyer wrote a dissent joined by Justice Elena Kagan. Justice Sonia Sotomayor wrote a dissent joined by Justice Ruth Bader Ginsburg.
Both Breyer and Sotomayor read from their dissents from the bench.
“History will not look kindly on the court’s misguided decision today, nor should it,” Sotomayor said from the bench.
Breyer said, “The proclamation on its face is neutral and is of a kind that other presidents have issued. But the many [anti-Muslim] statements referred to in the [challengers’] briefs, including those of the president, suggest the contrary. So which is it?”
The teachers’ unions, higher education groups, and at least 30 colleges and universities had joined friend-of-the-court briefs in support of the challenge to the so-called travel ban. Those groups argued that the entry restrictions have kept international students, teachers, and scholars out of the United States for higher education and for academic conferences.
Among the claims of the challengers was that the latest iteration of Trump’s entry ban is, like two versions before it, motivated by anti-Muslim bias as expressed by statements by Trump both during the campaign and since he took office. The proclamation under review was issued last September and currently covers affects Iran, Libya, Somalia, Syria, and Yemen.
Roberts examined Trump’s statements such as his 2016 comment on the campaign trail calling for “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
“Plaintiffs argue that this president’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” the chief justice said. “But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
Roberts said the case differed from the usual establishment clause claim.
“Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad,” he said. “The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”
Breyer, in dissent, noted that there are numerous people who qualify for visa waivers from the affected countries, including students and children.
“Unfortunately there is evidence that ... the government is not applying the proclamation as written,” Breyer said.
He cited friend-of-the-court briefs filed on the challengers’ side by some 30 colleges and universities as well as one by labor groups that was signed by the American Federation of Teachers and the National Education Association.
Sotomayor said the plaintiffs have shown substantial evidence that there will be, among other harms, “constraints to recruiting and retaining students and faculty members to foster diversity and quality within the university community.”
She cited several of the court’s school precedents regarding “a principle at the heart of the establishment clause, that government should not prefer one religion to another, or religion to irreligion.”
A version of this news article first appeared in The School Law Blog.