The Review

As our Sarah Brown reported last week, the Trump administration has escalated its campaign against putative campus antisemitism by threatening to expel foreign students who participated in campus protests against Israel. In Trump’s words, “To all the resident aliens who joined in the pro-jihadist protests ... we will find you, and we will deport you. I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”

That threat is quoted in the “fact sheet” the White House released to accompany an executive order issued at the end of January. There’s some daylight between the bombast of the fact sheet and the executive order itself, which does not announce immediate plans for visa revocation and deportation but merely directs various cabinet members to make “recommendations for familiarizing institutions of higher education with the grounds for inadmissibility” under the law “so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds and for ensuring that such reports about aliens lead, as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove such aliens.” In other words, colleges should be reminded what the law is and develop a plan to follow it.

How chilling to campus speech is that? Contrary to the implication of the fact sheet, it is not true that the relevant law — 8 USC 1182, governing “inadmissible aliens” — provides for the expulsion of foreign students for mere speech. As Zachary Greenberg of the Foundation for Individual Rights and Expression (FIRE) told me, when it comes to students who are what the fact sheet called “pro-jihadist,” “The First Amendment still fully protects their speech. Merely sympathizing with Hamas or joining a pro-jihad protest would be protected by the First Amendment.” Absent financial and material support for terrorism, “advocacy is protected speech.” Sarah McLaughlin, a senior scholar with FIRE, quoted a 1945 Supreme Court decision affirming First Amendment rights for resident foreigners: “Freedom of speech and of press is accorded aliens residing in this country.”

I asked Noah Feldman, who teaches constitutional law at Harvard, how vulnerable foreign students are right now. “The government cannot remove or deport you without your having violated the conditions of your visa in some way,” he told me. “They can’t just say, ‘Because of what you’ve said, we’re kicking you out.’” It’s true that students who have violated the conditions of their visa can be deported, but there’s nothing new in that.

Nevertheless, FIRE’s Alex Morey told The Forward that the order could still do a lot of damage to the campus-speech environment: “Schools are often in risk Whack-a-Mole. Right now the threat to federal funding — or some federal investigation — is much more pronounced. Nobody is suing them on First Amendment grounds yet.” And if college administrators suspend or expel foreign students for activist speech suddenly deemed unacceptable, those students would obviously be at risk of losing their visas. The real threat is not that the federal government will suddenly start rounding up and deporting foreign students for disfavored political speech, but that college administrators, spooked by the Trump administration and prone to overcompliance with federal regulations, will impose prophylactic restrictions on speech critical of Israel.

If so, the sharp edge of those restrictions will first be felt by noncitizens like Momodou Taal, of the U.K., who last year was suspended from Cornell for protesting after curfew, thereby risking visa loss and deportation. (Cornell later reversed Taal’s suspension.) But Feldman told me that he expects “the overwhelming majority of universities will bend over backwards not to cooperate with some attempt by the Trump administration to target students who are here on visas based on their views.”

Whether or not they will face such attempts from the Trump administration, they will certainly face them from activists. As The Intercept’s Akela Lacy reported last week, the activist group Mothers Against College Antisemitism (MACA), which seems to have exerted significant influence at NYU, is already strategizing about how to use Trump’s executive order to increase pressure on colleges. “Please tell everyone you know,” MACA’s founder, Elizabeth Rand, told its 62,000 Facebook members, “...to file complaints about foreign students and faculty who support Hamas.”

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• “I merely thought Trump was a big joke that indicated the failures of the previous consensus — not a phenomenon that was no laughing matter, let alone someone of, in Alex’s words, ‘quasi-religious significance.’” In The Point, Mana Afsari investigates a political movement.
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Write to me at len.gutkin@chronicle.com.

Yours,

Len Gutkin