As Deadline to Address DHS Letter Nears, Experts Say Harvard Should Sue — Again

Harvard has taken the Trump administration to court over federal funding, but the University has given no indication about how it will respond to the Department of Homeland Security’s request for information on international students.

The DHS threatened to revoke Harvard’s ability to host international students in an April 16 letter unless the University agrees to submit information to the agency pertaining to international students’ disciplinary records and protest participation.

Harvard has until Wednesday to respond.

Though the DHS was not on the list of federal agencies named as defendants in Harvard’s 51-page Monday lawsuit against the Trump administration, several legal experts told The Crimson that the University should seriously consider a second lawsuit — this time targeting the threats against international students.

New York Law School professor Lenni B. Benson, a specialist in immigration law, said the DHS demands to Harvard likely go beyond the scope of existing regulations governing Student and Exchange Visitor Program certification.

The requests in the letter include information regarding each visa holder’s “known deprivation of rights of other classmates” and “obstruction of the school’s learning environment,” along with any disciplinary actions “taken as a result of making threats to other students or populations or participating in protests.”

American universities cannot host international students on F-1 and M-1 visas — the most common types of student visas — unless they have SEVP certification. More than 6,500 international students are currently enrolled at Harvard.

“I would hope that Harvard is going to either amend its current complaint to specifically address this or file a separate lawsuit to protect its international student designation,” Benson said.

Benson said that Harvard could respond by affirming that it has information about students’ class enrollment and other specific criteria stipulated by legal code, but not on broader requests of the letter such as visa holders’ “known dangerous or violent activity.”

“If I were advising, I would say the information we have about our students is their enrollment in classes, their payment of tuition, their progress toward graduation, their authority to work on campus, their authority to work off campus,” Benson said.

Both Harvard College Dean Rakesh Khurana and the Harvard International Office have said the University will comply with federal law when responding to the DHS, but neither said which requests the University considers to be within legal bounds.

Jeff Joseph, the former vice president of the American Immigration Lawyers Association, said the demands are beyond the department’s statutory authority and could also conflict with laws governing student privacy.

Under the Family Educational Rights and Privacy Act, a student’s disciplinary records — including some of those requested in the DHS letter — cannot be shared without consent from the student.

According to the DHS website, universities must file a SEVIS report when a student is disciplined for a criminal conviction. But the website explicitly instructs officials not to report non crime-related actions, such as student life infractions or academic probation.

“I’d first respond to this letter and basically ask the request be quashed because it’s not compliant with the regulations,” Joseph said.

If the DHS did decide to follow through and revoke Harvard’s SEVP certification, Joseph said the effects would be “debilitating.”

“They would not be able, theoretically, to accept foreign students for a period of one year,” Joseph said. “ICE has to come up with a plan for existing students that are already in the SEVIS system at Harvard.”

According to the ICE website, if a university loses its SEVP status, currently enrolled international students must choose between transferring to a different university, seeking changes to their immigration status, or leaving the country.

Emory University adjunct law professor Charles Kuck said the DHS requests to Harvard were so obscure and outside the bounds of existing policy that the University has “no functional way of responding.”

“How are they supposed to track that information?” Kuck asked. “We have free speech rights in America and we don’t track people’s speech activities.”

“There is no doubt that their lawyers are twilling away in some boiler room somewhere right now lighting up that complaint,” he added.

But Ian A. Campbell, an immigration lawyer and 2016 Harvard Law School graduate, said Harvard should not immediately file suit, instead submitting the information it is required by law to retain.

“The letter asks for information that Harvard has and maintains records of, and they could simply respond by saying, ‘This is the information we have,’” Campbell said.

“They could come back and say, ‘Well, we don’t think that information is enough,’ but then I think Harvard is in a stronger position, because they literally complied with what the letter literally asked for,” he said.

Campbell said he believed an initially compliant response from Harvard may curb retaliation from the Trump administration toward international students.

“If they’re going to fight it, they have to accept that it may be for nothing — it may not work in the end,” Campbell said.

The HIO has been the primary source of information and advice for international students, but Joseph said students should speak with an immigration lawyer if they have concerns about their status.

“That immigration lawyer is going to be able to sort through the hysteria and chaos and get to the truth,” he said.

Students can seek legal assistance from the Harvard Representation Initiative, a pro bono legal clinic that provides consultation and representation.

—Staff writer Samuel A. Church can be reached at samuel.church@thecrimson.com. Follow him on X @samuelachurch.

—Staff writer Cam N. Srivastava can be reached at cam.srivastava@thecrimson.com. Follow him on X @camsrivastava.