The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over Eighty Universities File Amicus Brief in Case Challenging Trump's Speech-Based Deportations of Non-citizen Students
It's a good step. But the schools should also file their own lawsuit challenging this awful policy.
In a previous post, I urged universities to band together to file a lawsuit challenging Donald Trump's policy of speech-based deportation of foreign students and academics. So far, I have had little, if any, success in persuading schools to do so. Many individual academics have expressed support for the idea (originated by the faculty of the Tufts Fletcher School of Law and Diplomacy), but no university administrations have acted on it.
Still, I am happy to see that 86 colleges and higher education associations filed an amicus brief in a case challenging the deportations filed by the the Knight First Amendment Institute on behalf of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA).
Notable institutions joining the brief include Fordham, Georgetown, the Association of Catholic Colleges and Universities, Swarthmore, and my undergraduate alma mater Amherst College, among others. This is one of the very few issues on which Amherst agrees with traditional rival Williams College (which also joined the brief)!
While I commend the schools that joined the brief, it is not an adequate substitute for filing a lawsuit of their own. The case filed by AAUP and MESA could get thrown out of court on procedural grounds - most notably because court might hold that these groups are not clearly or directly enough harmed by speech-based deportations to get "standing" to sue. By contrast, universities have a strong basis for standing to challenge the deportation of students and employees based on the fact that deportation of the former causes them to lose tuition funds, and deportation of the latter causes them to lose valuable labor. That's particularly true of the many schools whose students or employees have already been targeted for speech-based deportations.
To be clear, I believe AAUP and MESA do deserve to get standing, in part because of my general opposition to strict standing restrictions. But I am not sure whether federal courts will agree. Universities have a clearer case for standing.
If universities are not willing to stand up for the free speech and academic freedom of their students and faculty, then what, if any, values do they stand for? Now is the time for schools to use their standing rights to stand up and be counted fighting for a just cause. Perhaps that takes the "standing" metaphor too far; but I trust readers will get the point.
In earlier posts, I have explained why deportation and other immigration restrictions are not exempt from the constraints of the First Amendment, and why speech-based deportations pose a serious threat to free speech and academic freedom on campus - and not just that of foreign students and faculty.
