The Volokh Conspiracy
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Universities Should Challenge Trump's Speech-Based Deportations of Students in Court [Updated]
A lawsuit brought by universities could potentially be much more effective than leaving individual students to fend for themselves.
The Trump administration has been detaining and trying to deport immigrant and foreign students for their First-Amendment protected speech. That includes even speech that does not actually support terrorism, as in the case of a Tufts graduate student detained for an anti-Israel op ed that, however flawed, does not endorse Hamas terrorism, or indeed even mention it. Such detention and deportation is an assault on freedom of speech, and violates the First Amendment, which has no exception for immigration restrictions.
In a recent public letter, the faculty of Tufts' Fletcher School of Law and Diplomacy propose universities take action to stop this travesty:
Resolved: That the undersigned Executive Faculty of the Fletcher School of Law and Diplomacy urge and would support Tufts University commencing legal action, without delay and in concert with other universities if possible, to enjoin the government and its agents from arresting, detaining, or deporting university students, staff, or faculty based upon their engagement in constitutionally protected expression.
The signatories below constitute a majority of the Executive Faculty.
This is a good idea, and schools should pursue it. I am just a rank-and-file academic and do not speak for my university. But I will do what I can to persuade relevant authorities to act on the Tufts Fletcher School faculty's suggestion. I urge other academics and university officials to do the same.
Up till now, students and university employees targeted for deportation based on their speech have been largely left to fend for themselves, trying to challenge the deportations after they have already been detained. A lawsuit brought by a coalition of universities would have important advantages over this case-by-case approach.
Most obviously, the universities could file a class action lawsuit or seek a nationwide injunction. This could block such detentions and deportations throughout the country in one fell swoop. By contrast, under the status quo, individual students and employees targeted for deportation for their speech often have to spend weeks or months in cruel detention. Even if they ultimately prevail in court, they will have undergone considerable suffering, and potentially significant losses to their education and career prospects. Moreover, freeing one such detainee won't necessarily protect others. Thus, the "chilling effect" on other students' and employees' speech could continue.
A class-action lawsuit or nationwide injunction could solve these problems. If successful, it could preemptively block speech-based detention and deportation of university students and employees throughout the country. This would save targeted immigrant and foreign students from enduring weeks in detention, and lift the cloud of fear that has descended on campuses.
Moreover, universities have far greater resources to conduct litigation than individual students and employees do. They could much more easily employ topnotch legal talent, and expend the resources needed to prevail.
The case for a nationwide injunction here is similar to that which led to the grant of multiple nationwide injunctions against Trump's birthright citizenship executive order. In both situations, the unconstitutional policy in question is categorical and nationwide in scope, and affects large numbers of people, many of whom cannot easily protect themselves.
I would add that the First Amendment context provides additional support for systematic nationwide relief. Courts have long recognized that the Free Speech Clause protects against "chilling effects" on speech, as well as direct speech restrictions. The Trump administration's deportation policies are an obvious example of this problem. The standards of what counts as speech supporting "terrorism" or having "potentially serious adverse foreign policy consequences for the United States" are incredibly vague. So much so that the late Judge Maryanne Trump Barry (Donald Trump's sister) ruled in 1996 that the law authorizing deportation for the latter type of speech was unconstitutional because of its extreme vagueness.
Allowing deportation based on these types of vague standards could easily chill speech on a wide range of issues involving armed conflict, international relations, US foreign policy, and much more. And it isn't just immigrant and foreign students' speech that would be affected. Other students and faculty maybe be chilled in discussing these subjects on campus, for fear of exposing international students or non-citizen immigrants to danger, if the latter participate in the relevant discussions.
For example, in my constitutional law classes, I teach segments on the use of racial profiling in the War on Terror, executive war powers, immigration, and other issues related to foreign and security policy. If a non-citizen student participates in class discussion or writes a paper on one of these topics, there is a chance they might say something the administration defines as supporting terrorism or having "adverse foreign policy consequences for the United States," and thereby be targeted for deportation. To completely forestall that danger, instructors must either avoid such topics altogether, or forego discussing them with non-citizen students. Similar points apply to scholars researching and writing on such issues in collaboration with non-citizen students or faculty.
These kinds of chilling effects are an obvious threat to free speech on campus, and the academic enterprise of teaching and research. Universities owe it to their students and faculty to protect them against this menace.
If commitment to principle isn't enough to motivate schools to fight, perhaps financial self-interest might do so. International students are an important source of revenue for many schools. The risk of deportation for speech may well deter many from coming, thereby hurting universities' bottom line.
Success in a lawsuit like the one I advocate isn't guaranteed. While the Supreme Court ruled in a 1945 case that "Freedom of speech and of press is accorded aliens residing in this country," later decisions have upheld some speech-based deportations and entry restrictions. However, none of these have endorsed the idea that immigrants or students can be excluded or deported based solely on speech otherwise protected by the First Amendment. For example, in the 1952 Harisiades decision, the Supreme Court only upheld deportation of Communist Party members on the ground that - under then-current precedent - membership in the Party wasn't protected by the First Amendment at all, even for US citizens.
Today's Supreme Court is often hostile to immigrants' rights, but it also provides strong protection for freedom of speech. The latter tendency might well prevail over the former, especially when the speech restrictions in question are as vague and sweeping as those the Trump Administration seeks to implement.
In any event, the courts are going to address Trump's speech-based deportations one way or another, since students targeted for deportation are raising First Amendment defenses. A lawsuit brought by universities maximizes both the odds of success, and the potential payoff from prevailing.
I will not, in this post, try to address all the various procedural issues that might come up in such a lawsuit. But I will note one: Universities should be able to get standing to sue on the grounds that deportation of students and employees affect their economic interests. In addition, they also have a chilling effect on the free speech rights of other university students and employees, and ultimately those of universities as institutions.
I would add that state governments might be able to get standing to sue on behalf of their state university systems. Blue state attorneys general should consider that possibility.
As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the students now targeted for deportation (many of those views are awful in various ways). I also think students and others who engaged in violence, intimidation, or property damage during protests should be punished.
But a principled commitment to free speech requires protecting even those viewpoints we believe to be badly wrong. And the vague standards used by the Trump administration create an obvious slippery slope risk. The Israeli-Palestinian conflict is far from the only issue discussed on campus that involves terrorism or impinges on US foreign policy interests.
And, yes, I know some universities have fallen short on free speech issues themselves, with policies such as speech codes and mandatory "diversity statements" for faculty candidates. Such failings should be remedied. But they don't justify caving to the Trump Administration's much more sweeping speech restrictions. Among other things, a censorship regime imposed nationwide by the federal government is much more dangerous than restrictions adopted by some individual universities, but rejected by others.
If universities want to protect free speech and academic freedom on campus, they should fight for it. The Tufts Fletcher School faculty have shown us the way.
UPDATE: Jameel Jaffer of the Knight First Amendment Institute informs me that, on March 25, his organization filed a lawsuit similar to the one envisioned above on behalf of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA). I am glad to hear of it! It is also good that their complaint seeks a nationwide injunction against deportations based on speech. But I don't think this obviates the need for a suit by universities. Among other considerations, I think the latter can more easily get standing than AAUP or MESA, as they likely suffer more extensive and more direct injuries from the deportation of students and employees.
