From ACLU’s Mar. 4 Open Letter to U.S. Faculty and College Presidents:
This letter is prompted by two Govt Orders—Govt Order 14161, titled “Defending the US from International Terrorists and different Nationwide Safety and Public Security Threats,” signed on January 20, 2025, and Govt Order 14188, titled “Further Measures to Fight Anti-Semitism,” signed on January 29, 20252—and associated communications from the White Home.
Govt Order 14161 states that it’s the United States’ coverage to “shield its residents” from noncitizens who “espouse hateful ideology,” and to make sure that noncitizens “don’t bear hostile attitudes towards [America’s] residents, tradition, authorities, establishments, or founding ideas, and don’t advocate for, assist, or help designated overseas terrorists and different threats to our nationwide safety.” The Order directs the Secretary of State to “[r]ecommend any actions needed to guard the American folks from” noncitizens who, amongst different issues, “preach or name for … the overthrow or substitute of the tradition on which our constitutional Republic stands.”
Govt Order 14188 requests from the Legal professional Normal “a listing and evaluation of all court docket instances … involving establishments of upper schooling alleging civil-rights violations associated to or arising from post-October 7, 2023 campus anti-Semitism” and directs the Secretaries of State, Training, and Homeland Safety to suggest methods to “familiariz[e] establishments of upper schooling with the grounds for inadmissibility below 8 U.S.C. 1182(a)(3) in order that such establishments might monitor for and report actions” by noncitizen college students and workers and make sure that such reviews lead “to investigations and, if warranted, actions to take away such aliens.” In a reality sheet explaining Govt Order 14188, the White Home described the Order as “forceful and unprecedented,” made clear its goal of focusing on “leftist, anti-American schools and universities,” and described it as a “promise” to “rapidly cancel the scholar visas of all Hamas sympathizers on faculty campuses, which have been infested with radicalism like by no means earlier than.” …
Together, these orders, the accompanying reality sheet, and different communications from the Trump Administration are supposed to enlist college officers in censoring and punishing non-citizen students and college students for his or her speech and scholarship. As you nicely know, this might intrude on educational freedom and equal entry to schooling….
Establishments of upper studying play a key position in our democratic society. As areas dedicated to educational freedom and open discourse—and which are sometimes residence to a various group of individuals with a variety of various backgrounds, bringing collectively students and college students from all through the US and everywhere in the world—faculty and college campuses have been central to political expression and the event of concepts all through the historical past of the US. American campuses additionally allow non-citizen college students and college to extra freely specific themselves—together with by expressing views that is perhaps topic to heightened repression and censorship of their international locations of origin—by way of political demonstrations, educational debate, or analysis and writing.
Ideologically-motivated efforts to police speech on campus—together with speech important of America’s “residents, tradition, authorities, establishments, or founding ideas,” or of the acts of the U.S. authorities or overseas governments—undermine the muse on which educational communities are constructed, whatever the nationality or immigration standing of audio system who’re censored. Although the exact implementation of the Govt Orders stays to be seen, Govt Order 14161 articulates the Administration’s need to focus on people who “advocate for, assist, or help designated overseas terrorists and different threats to our nationwide safety,” those that maintain “hateful” views, and those that “bear hostile attitudes towards [America’s] residents, tradition, authorities, establishments, or founding ideas.” Within the reality sheet on Govt Order 14188, the White Home makes clear that it believes many establishments of upper schooling are “leftist” and “anti-American,” and are residence to “Hamas sympathizers” and “radical[s].”
The message is evident, no matter whether or not the drive of legislation will in the end observe: immigrant college students, college, and workers on faculty and college campuses ought to assume twice earlier than they criticize the US or this Administration, specific help for Palestinians, or condemn Israeli authorities insurance policies—or certainly anything President Trump and different federal officers would possibly probably discover objectionable—and schools and universities that enable such speech, debate, and protest ought to assume twice, too.
These govt orders are at odds with the foundations of educational freedom. For public universities and schools, the orders might require campus officers to violate the First Modification, which obligates authorities entities to respect free speech rights, together with these of its college students, college, and workers who are usually not U.S. residents. Colleges are additionally obligated below federal legislation to guard college students from discrimination, harassment, threats, and violence. However protected political speech and affiliation alone—regardless of how offensive to members of the campus neighborhood—can’t be the idea for self-discipline, nor ought to it result in immigration penalties. Personal universities, although not sure immediately by the First Modification, are additionally guided by related commitments to educational freedom and free inquiry. As well as, the First Modification safeguards in opposition to authorities efforts to stress personal universities to stifle their neighborhood members’ disfavored speech. Cf. NRA v. Vullo (2024) (holding that the federal government might not stress third events into censoring speech that it couldn’t censor immediately).
Viewpoint neutrality is crucial on this endeavor. Specific viewpoints—whether or not reprehensible or standard within the eyes of the vast majority of the neighborhood, or whether or not singled out within the Govt Orders and associated communications—should not be focused for censorship, self-discipline, or disproportionate punishment. Harassment directed at people due to their race, ethnicity, or faith is, after all, impermissible. However protected political speech can’t be the idea for punishment. As prompt by its govt orders, the Trump Administration wish to censor and punish, amongst different issues, expressions of “from the river to the ocean,” or advocacy to “exchange[
] the tradition on which our Constitutional Republic stands,” or a course on the historical past of white supremacy in America. Such censorship, even of speech that’s offensive to many listeners, is anathema to the First Modification and ideas of educational freedom.
On the contrary, the flexibility to criticize governments, their insurance policies, and even their foundational philosophies is a important part of our democracy. Political speech is “on the core of what the First Modification is designed to guard.” It permits the “unfettered interchange of concepts for the bringing about of political and social adjustments desired by the folks.” Our nation has a “profound nationwide dedication to the precept that debate on public points ought to be uninhibited, sturdy, and wide-open[.]”And that dedication extends to school and college campuses, the place the First Modification safeguards free speech and free affiliation. In Healy v. James (1972), for instance, the Supreme Courtroom affirmed that the First Modification protects the correct of pupil teams to affiliate and converse out on issues of public concern, free from censorship by public college officers, even the place the scholar teams could also be aligned with political viewpoints thought of radical and unpopular.
Outdoors the classroom, together with on social media, college students and professors have to be free to peaceably specific even essentially the most controversial political views with out concern of self-discipline or censure. Contained in the classroom, speech may be and all the time has been topic to extra restrictive guidelines to make sure civil dialogue and a strong studying surroundings. However such guidelines don’t have any place in a public discussion board like a campus inexperienced—and in any occasion, it’s not the right position of the White Home to set these guidelines. Preserving bodily security on campuses is paramount; however “security” from concepts or views that one finds offensive is anathema to the very enterprise of the college….
[U]niversities can, and certainly should, shield college students from discriminatory harassment, together with on the idea of “shared ancestry or ethnic traits,” or “citizenship or residency in a rustic with a dominant faith or distinct non secular id.” Whereas offensive and even racist or xenophobic speech is constitutionally protected, shouting an epithet at a selected pupil or pinning an offensive signal to their dorm room door can represent impermissible harassment. Antisemitic, anti-Palestinian, or anti-immigrant speech focused at people due to their ethnicity or nationwide origin constitutes invidious discrimination, and can’t be tolerated. Bodily intimidating college students by blocking their actions or pursuing them aggressively is unprotected conduct, not protected speech. It ought to go with out saying that violence is rarely a suitable protest tactic.
Speech that’s not focused at a person or people due to their ethnicity or nationwide origin however merely expresses impassioned views about Israel, Palestine, immigration coverage, or another topic the White Home might discover objectionable is just not discrimination and ought to be protected. The one exception for such untargeted speech is the place it’s so extreme or pervasive that it denies college students equal entry to an schooling — an especially demanding customary that’s hardly ever, if ever, met by pure speech. Federal authorities officers can not coerce college officers into taking actions inconsistent with this settled First Modification legislation….
I feel this evaluation is mostly fairly sound as a matter of free speech precept. As I famous final month, it isn’t clear whether or not the First Modification would forestall the federal authorities from deporting noncitizens for his or her speech “endors[ing] or espous[ing] terrorist exercise”; however, as I additionally famous then, I feel that such deportation is unhealthy coverage, as a result of chilling the speech of lawful guests to the U.S. does intervene with {the marketplace} of concepts for People. Certainly, even pro-Hamas speech on American college campuses has, I feel, taught many People a precious lesson about varied audio system, teams, and ideologies. That may be true of speech by overseas college students or by lawful everlasting residents in addition to by Americans.
Observe additionally that NRA v. Vullo, the 2024 Supreme Courtroom precedent that the ACLU’s letter cites, was argued by David Cole of the ACLU (representing the NRA); the petition was filed by the Brewer Legislation Agency and by me. I feel the seen ACLU-NRA / left-right alliance helped the NRA prevail, but in addition, as this case illustrates, helped ACLU in its broader agenda. The underlying precept—that the First Modification limits the federal government’s energy to discourage speech by threatening intermediaries (banks or insurance coverage corporations in NRA v. Vullo, personal schools)—protects all speech (no less than by residents), whether or not pro-gun-rights speech, anti-Israel speech, and even pro-terrorist speech.
The letter additionally argues that universities should not usually help federal officers in immigration legislation enforcement, makes varied arguments concerning the Household Instructional Rights and Privateness Act, and makes varied Fourteenth Modification and Title VI arguments as nicely; I am extra unsure on these issues. I would additionally quibble a bit with the exact articulation of what could also be punishable harassment. However the ACLU’s normal evaluation about free speech strikes me as fairly proper.
