A legal effort by 15 international UCLA athletes to join their respective Bruins teams has fallen short. In a recent ruling, U.S. District Court Judge Virginia Phillips denied the athletes’ petition for an injunction to enter the country over the objections of the U.S. Department of Homeland Security.
The athletes, whose names are redacted from court filings, were recruited to play basketball and other sports (a 16th plaintiff is an athlete at Loyola Marymount). They are all first-year students and reside in such countries as Australia, Canada, Great Britain, Israel, Italy, New Zealand, Norway and Spain. Many received athletic scholarships and grants-in-aid. They also turned down other athletic opportunities in order to play college sports in Los Angeles and pursue academic studies there.
The problem is they can’t lawfully enter the United States.
DHS has barred their entry as part of the agency’s evolving set of policies to curtail immigration during the coronavirus pandemic. The agency has warned that any entry could bring about deportation and removal proceedings.
The athletes maintain they have met legal requirements as best possible. Most notably, they have obtained nonimmigrant temporary visas, known as F-1 visas, to study at American schools. Eligibility for these visas is contingent on, among other things, taking a full course load. Students on F-1 visas are also restricted in the number of online credits they can obtain.
The F-1 visa policy has proven problematic in 2020. In light of the coronavirus pandemic, many colleges—including UCLA and Loyola Marymount—have shifted to hybrid or fully online models. In recent months, DHS has relaxed rules regarding online courses. Yet the agency still bars the entry of new international students when their coursework would be taken exclusively online.
Therein lies the problem for the athletes, whose courses aren’t offered in-person. The athletes insist they are being deprived of important opportunities to train, practice and play NCAA games—and they could lose their scholarships, too. They maintain that DHS has violated their due process rights as well as protections accorded by the Administrative Procedure Act. The athletes demand an injunction that would permit their entry to play this academic year.
In her ruling, Judge Phillips acknowledged that the athletes have suffered a “concrete and particularized injury” in being denied participation in “rigorous training and competition for their college teams in-person.” Such engagement, the judge wrote, “is necessary for the maintenance and growth” of athletic talents. To that end, the players could see their scholarships stripped and their athletic careers damaged or even destroyed. The basketball players, for instance, have already missed games, meetings, trainings and practices where they could be gaining the trust of coaches and teammates. They can never get those experiences back.
There are nonetheless legal hurdles for the athletes. For one, they may be barred from raising a constitutional claim. While persons on visas can ordinarily challenge the constitutionality of federal and state actions when those individuals are within the territorial boundaries of the United States, the ability of visa holders to raise constitutional violations while outside those boundaries is, Judge Phillips reasoned, “less certain.” She stressed that none of the 16 athletes has concrete ties to the United Sates—none allege they have previously entered or resided in the U.S., nor do they own property in the country.
Judge Phillips also doubted whether “interest in participating in [an] athletic program” is a protected constitutional interest. She found the athletes failed to identify sufficient precedent for such a proposition.
The judge further expressed skepticism towards the athletes’ administrative law claims. Under the Administrative Procedure Act, courts are directed to set aside arbitrary agency actions. The athletes complain that it is an arbitrary policy for first-year international students to be denied entry while non-first-year international students are admitted. There’s no obvious reason why a second-year international student would present a lower risk of spreading COVID-19 (or of any danger or security concern) than a first-year international student.
Challenging an administrative agency in court is difficult. In Judge Phillips’ view, the athletes failed to meet the high burden. She noted that the athletes effectively seek “a new regulation that permits all international students’ entry, including new first-year students, when their coursework is offered only online.” Courts, Judge Phillips stressed, aren’t supposed to “engage in substantive policymaking,” adding that “the public interest is not served where a court exceeds its authority by usurping the role of an agency.”
The case is not over, however. The players have filed an appeal to the U.S Court of Appeals for the Ninth Circuit and will get another chance to make their case.