Harvard University and the Massachusetts Institute of Technology on Wednesday filed a lawsuit aimed at blocking a new Trump administration directive that would force potentially tens, or even hundreds, of thousands of foreign students at U.S. colleges to miss online-only instruction planned for the fall semester.

Alleging that the directive, released Monday by Immigration and Customs Enforcement, is both politically motivated and apparently designed to "create as much chaos for universities and international students as possible," the two leading American universities launched a temporary restraining order- and injunction-based action that cites the Administrative Procedure Act and asks a Massachusetts federal court to halt the directive.

Released as a rule within the meaning of the APA, according to the universities, ICE's directive undoes a rule "exemption" the agency had issued in March and states that if an international college student takes an online-only course load in the fall semester they will face deportation proceedings. Likewise, new visas will not be issued for foreign students enrolled in an online-only instruction, according to the directive. Harvard and MIT, meanwhile, say that as COVID-19 continues to ravage the nation, their institutions, along with numerous other colleges and universities, have worked hard to recently create and announce either only-online class instruction for the fall or almost entirely only-online class schedules.

Represented by both the Boston and Washington, D.C., offices of Wilmer Cutler Pickering Hale and Dorr—including Boston-based partner William Lee and Washington-based partner and former U.S. Solicitor General Seth Waxman—the two universities argue in their 24-page filing that "immediately after the Fourth of July weekend, ICE threw Harvard and MIT—indeed, virtually all of higher education in the United States—into chaos."

The institutions' lawsuit argues that the directive, or "rule," issued without warning by ICE, appears to be an attempt to get U.S. colleges to fall in line with positions advocated by some in the Trump administration, including as reflected in certain statements made by President Donald Trump, that in-person education should resume despite COVID-19 health threats and that immigration—in this case for foreign students routinely granted F-1 visas—should be more restrictive in general.

"By all appearances, ICE's decision [as set out in Monday's directive] reflects an effort by the federal government to force universities to reopen in-person classes, which would require housing students in densely packed residential halls, notwithstanding the universities' judgment that it is neither safe nor educationally advisable to do so, and to force such a reopening when neither the students nor the universities have sufficient time to react to or address the additional risks to the health and safety of their communities," Harvard and MIT's complaint for declaratory and injunctive relief says. "The effect—and perhaps even the goal—is to create as much chaos for universities and international students as possible," it adds.

American "universities and students have been planning the 2020-2021 academic year for months in reliance on ICE's [March-issued "exemption"] recognition that the COVID-19 pandemic compelled allowing international students to remain in the country even if their studies had been moved entirely online," the filing also states.

At another point, it says, "ICE's action proceeded without any indication of having considered the health of students, faculty, university staff, or communities; the reliance of both students and universities on ICE's statements that the preexisting exemptions would be 'in effect for the duration of the emergency' posed by the COVID-19 pandemic, which continues to this day; or the absence of other options for universities to provide their curricula to many of their international students. Certainly, no notice-and-comment period was provided."

Moreover, the complaint, which is signed by three attorneys in Wilmer's Boston office along with three more in its Washington office, argues that "ICE's action leaves hundreds of thousands of international students with no educational options within the United States.

"Just weeks from the start of the fall semester," it continues, "these students are largely unable to transfer to universities providing on-campus instruction, notwithstanding ICE's suggestion that they might do so to avoid removal from the country. Moreover, for many students, returning to their home countries to participate in online instruction is impossible, impracticable, prohibitively expensive, and/or dangerous."

The Department of Homeland Security, which houses ICE within its agency, could not be reached for comment Thursday.

However, in a CNN television interview Wednesday, Kenneth T. Cuccinelli II, the homeland security's acting deputy secretary, said in part that "if they're [the international students] not going to be a student or they're going to be 100% online, then they don't have a basis to be here," according to news reports. He added, reports say, that "they should go home, and then they can return when the school opens."

Moreover, he reportedly contended that his agency was giving foreign students more latitude than before the pandemic, when obtaining a visa required a student enroll in only one course a semester online. Under the new directive, he reportedly said, foreign students can enroll in more than one provided they have some in-person class or classes.

The action lodged by Harvard and MIT names the Department of Homeland Security and ICE, and their acting heads, as defendants. It brings three APA-based counts, including one that contends that ICE's new directive is both arbitrary and capricious because it offers "no reasoned decision-making."

The directive "identifies a purported 'need to resume the carefully balanced protections implemented by federal regulations,' but it does not provide any reasoning why the agency perceives such a need to exist, nor why any resumption of the regime set out in federal regulations must begin in less than two months, while the COVID-19 pandemic continues to rage and the national state of emergency remains in effect," the complaint says in that APA-based count.