A federal judge upheld a court order blocking President Donald Trump from stripping Harvard University of its ability to sponsor international student visas.
U.S. District Judge Allison D. Burroughs on Thursday extended her earlier restraining order, which blocks the Trump administration from revoking Harvard’s certification under the Student and Exchange Visitor Program, or SEVP. That certification allows colleges to sponsor international students for U.S. visas during their enrollment.
Burroughs, an Obama appointee, said she would preserve the status quo while both sides confer and submit either a joint proposed preliminary injunction order or individual proposed orders.
But the update from the court is not a loss for the Trump administration — at least not yet.
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At issue is whether the Trump administration has grounds to revoke Harvard’s SEVP certification. Trump officials have accused Harvard University of “fostering violence, antisemitism, and coordinating with the Chinese Communist Party on its campus,” according to a statement from DHS Secretary Kristi Noem.
Legal experts told Fox News Digital that foreign students have far fewer protections than U.S. citizens, which puts Harvard at the government’s mercy as long as the Trump administration satisfies certain procedural requirements.
Experts noted that the SEVP program falls squarely under the authority of DHS and ICE, giving the Trump administration broad discretion to certify, extend or revoke a university’s participation based on the conduct of its foreign student visa holders.
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While U.S. citizens have First Amendment protected free speech rights, the same is not true for foreign students studying in the U.S., whose status is sponsored by their university.
The intersection “of First Amendment [issues] with immigration law, at least to this extent, has really become a new thing under this administration,” Robert Shibley, the special counsel for campus advocacy at the Foundation for Individual Rights and Expression, told Fox News Digital.
“Part of the complication here is that the government does have so much more leeway on foreign policy issues,” Shibley said. “However, I think in this case, there’s a pretty clear process laid out in the regulations for stripping a school of its ability to get foreign students to attend on visas — and simply demanding a certain amount of information from the school and stripping them immediately, which is what they originally said, not the process.”
Shortly after court adjourned Thursday, the Trump administration gave Harvard 30 days to submit evidence and argue why its SEVP certification should not be revoked. It’s unclear whether that alone satisfies procedural requirements under the Administrative Procedure Act.
The court must also consider what type of conduct foreign student visa holders are engaged in and whether these student visa holders are “systemically” engaged in serial violations of immigration law or are acting in support of foreign terrorist organizations, alleged foreign terrorist organizations or foreign totalitarian governments.
“That gives DHS stake to investigate and reevaluate on an off-cycle basis, the SEVP certification and eligibility,” said Aram Gavoor, an associate dean at George Washington University Law School and a former Justice Department attorney. In this case, he said, DHS would have “significant authorities to authorize, regulate, certify and, if necessary, decertify, the Student and Exchange Visitor Program.”
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“And, in a number of circumstances, the ability of a university to operate its own educational institution with what it teaches and how it teaches that can — in certain circumstances — come into tension with the authority of the U.S. government to regulate immigration in the context of student exchange visitors,” Gavoor added.
Lawyers for Harvard told the court that, if enacted, the revocation of its SEVP program would affect roughly 7,000 international students at the school at the undergraduate and post-graduate level, causing irreparable harm. They also claimed the action was a breach of administrative procedure, which requires the administration to grant a certain period of notice before revoking their SEVP credentials.
“The revocation continues a series of government actions to retaliate against Harvard for our refusal to surrender our academic independence,” Harvard University President Alan Garber said Friday in a letter to the Harvard community.
In the short term, the uncertainty could lead foreign students in the visa program to flee Harvard, seeking transfers to other universities that are not targeted by the Trump administration, experts told Fox News.
Student visa holders are given roughly 180 days after their status is revoked to leave the country or risk violating the law, making the case of utmost importance for thousands of students.
Legal experts noted the court is wading into largely uncharted territory. Asked how it might play out, many scholars pointed to a lack of precedent and offered no clear answer.
“As with many things that Trump does, the answer is unclear, because it hasn’t been done before,” Josh Blackman, a law professor at South Texas College of Law, said. “No president has tried to do this before, so I don’t think there’s a clear precedent on the answer.
“What I’ll say is this: Trump has basically accused Harvard of being a front for terrorism and emboldening terrorism,” he added. “And I think what they’re trying to do is determine if this institution can basically exist.”
This was echoed by Gavoor, who said things need to play out between the Trump administration and Harvard before the court can properly decide if the government followed the law.
“I think Harvard does need to comply with the off-cycle review of DHS’s SEVP certification,” Gavoor said.
At the same time, he said, even if the Trump administration loses on the merits of this case, “there’s a point to be argued that it may have won as a function of policy,” he said.
“That’s because it simply creates a chilling effect for students who would otherwise be attending or apply to Harvard University to be less inclined to do so or [causes them] to make alternative plans for their education In the U.S.”
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