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Law360 (July 8, 2020, 3:39 PM EDT ) The Trump administration "dithered" before reversing course and arbitrarily excluding immigrant students from receiving aid during the COVID-19 pandemic, according to a Massachusetts suit seeking to block the restrictions.
The complaint, filed in federal court Monday by a Haitian student at Bunker Hill Community College, seeks to mirror the result of a California suit in which a judge said it was likely illegal for the U.S. Department of Education to keep foreigners from assistance under the Coronavirus Aid, Relief and Economic Security Act, or CARES Act.
The latest suit claims the administration violated the Administrative Procedures Act when it abruptly reversed guidance that would have allowed any college student to take advantage of the Higher Education Emergency Relief Fund, and instead restricted the money to those who qualify for financial aid under Title IV of the Higher Education Act.
"These students, many of whom are among the most vulnerable and in need of relief, are now ineligible to receive assistance from their colleges and universities during an ongoing national health crisis," the complaint states.
According to the suit, among those now prevented from accessing the funds are students enrolled in the Deferred Action for Childhood Arrivals program, students with pending asylum applications, students who have been granted a U Visa as victims of criminal activity, students with Withholding of Removal status, students with Temporary Protected Status, and undocumented students.
"To arrive at its chosen policy position, the department has dithered, reversed itself, and ultimately manufactured a statutory ambiguity where none exists," the complaint states. "The CARES Act is clear in its command that the department aid 'students,' not 'students who are eligible for Title IV.'"
Education Secretary Betsy DeVos said so herself in a letter to colleges and universities emphasizing each institution's broad discretion to allocate HEERF funds, the suit adds.
According to the complaint, DeVos wrote that "each institution may develop its own system and process for determining how to allocate these funds, which may include distributing the funds to all students or only to students who demonstrate significant need."
Less than two weeks after the April 9 DeVos letter, new guidelines stated that only U.S. citizens or "eligible noncitizens" could receive funding, the complaint alleges. DeVos formally cut out DACA recipients from the $6 billion relief fund in June.
Just a few days later, the judge in the California suit temporarily blocked the federal government from imposing those restrictions, finding that the rules would "exclude hundreds of thousands of students — including those in low-income communities and communities of color."
The plaintiff in the Massachusetts suit, Farah Noerand, says she lost her job as a result of the state's stay-at-home advisory during the peak of the pandemic. She now has to pay for a laptop, internet access and other food and household items that used to be available through the now-closed Bunker Hill campus in the Charlestown neighborhood of Boston.
"The secretary's policy is excluding immigrant students who often have to make financial sacrifices to be in college, and whom their schools wish to keep enrolled by extending these temporary COVID-related emergency grants, were it not for the secretary's policy," Noerand's legal team from the Massachusetts Law Reform Institute said in a statement Wednesday. "Congress — not the secretary — decides who is eligible for funding and did not exclude these students from relief."
A representative from the Department of Education did not immediately respond to comment requests Wednesday.
The Trump administration was also hit with a suit Wednesday by Harvard and MIT, which are challenging a new requirement that international students whose universities go fully online during the pandemic leave the U.S. or risk deportation.
Noerand is represented by Rachel C. Hutchinson and Jeremy W. Meisinger of Foley Hoag LLP and by Iris Gomez of the Massachusetts Law Reform Institute.
Counsel information for the Department of Education was not available.
The case is Noerand v. DeVos et al., case number 1:20-cv-11271, in U.S. District Court for the District of Massachusetts.
--Editing by Rebecca Flanagan.
For a reprint of this article, please contact reprints@law360.com.
