My book Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech was in its final edits and in the post-writing stage when Donald Trump was inaugurated into office for a second time. If I were still writing it today, I would need to dedicate new chapters to detailing another malignant censorship threat on American campuses: not the impositions by foreign powers, but the conduct of our own federal government.
In a post earlier this week I cited some of the illiberal and, in some cases, unconstitutional incursions by the Trump administration onto the First Amendment in the past few months. Some of the most disturbing violations, though, have targeted our institutions of higher education.
One of the most high-profile attacks has come in the form of the broadside against Harvard University. Thanks to Harvard’s willingness to stand up for itself, however, this campaign against universities, despite widespread pusillanimity on the part of campus leaders, is finally starting to show some cracks.
Earlier this month, a Massachusetts federal district court found that the Trump administration violated Harvard’s First Amendment rights, and Title VI of the Civil Rights Act, when it revoked billions in funding in a transparent effort to punish the university for its, and its community members’, political views under the guise of combatting antisemitism. The government does not receive a dispensation to use unlawful means simply because it says it does so in the name of fighting antisemitism or other discrimination on campus.
As the Foundation for Individual Rights and Expression (FIRE), where I work, warned in an amicus brief filed in the case in June, the “federal government’s coercion of Harvard violates longstanding First Amendment principles and will destroy universities nationwide if left unchecked.” FIRE’s brief explained that the federal government must provide the required legal processes and procedures laid out under Title VI, which it failed to do so here and, under the First Amendment, government officials cannot dictate to private actors their decisionmaking on speech.
The pressure that financial rewards or punishments put on universities is immense and, as I write in Authoritarians in the Academy, is one of the reasons why oppressive regimes abroad have been able to gain a foothold in U.S. higher education. Similar underlying pressure is at work here domestically—the closing off of critical funding as a means to punish universities that do not align with the government’s political preferences.
But the threat to campus free expression has not just been limited to the money disbursed by the federal government. In its campaign to punish international students, this administration has found a way to both target students whose views the government disfavors (with a clear focus toward critics of the Israeli government and the immigrants who allegedly hold “anti-American” beliefs) and chip away at a major funding source for politically noncompliant universities who rely on these students’ tuition dollars.
In this effort, Harvard was once again a primary target. On May 22, Homeland Security Secretary Kristi Noem warned Harvard that she was taking away the university’s Student and Exchange Visitor Program certification, meaning it could not enroll current or future international students. She specifically cited her intent to “root out the evils of anti-Americanism and antisemitism” in higher education. Disturbingly, she also demanded years worth of records of “any protest activity” by international students. As I explained earlier this year at The Los Angeles Times, threatening to cut off a university’s access to international students to punish political transgressions is not a novel tactic. In fact, it’s one that’s been used before—by Beijing.
The targets with the most to lose in this crusade have not even been the universities, but the international students themselves. These students, many of whom are traveling to the U.S. from significantly less free countries, expect to finally be able to speak their mind for the first time when they arrive on American shores. Instead, they now have to ask themselves if expressing themselves, whether in class or on social media, is worth the risk of being the next shackled passenger in an unmarked ICE van.
That’s why FIRE took Secretary of State Marco Rubio to court last month, contesting the statutory provisions the Trump administration is relying on to target lawfully present noncitizens for deportation over their protected speech.
The suit, representing plaintiffs including Stanford University’s independent student newspaper, challenges two provisions of the Immigration and Nationality Act that Rubio has employed to unconstitutionally punish international students for their speech. The first provision allows Rubio to initiate deportation proceedings against noncitizens for protected speech if he “personally determines” the speech “compromises a compelling foreign policy interest.” If that sounds wildly broad and subjective to you, that’s because it is. The second provision enables him to revoke the visa of noncitizens “at any time” for any reason.
One of the reasons why I first decided to write Authoritarians in the Academy is that I have long been troubled by the outside influences limiting international students’ ability to express themselves in the U.S., even with the First Amendment protecting them. So to see the federal government position itself as another threat to these students’ speech rights, rather than a force they can turn to for protection, has been deeply dispiriting.
Academic freedom and free expression are currently in grave danger in the U.S. To right this ship and preserve the possibility of a freer future for higher education, more universities are going to need to find their spines and defend themselves. You will not win battles you are unwilling to fight.
As we look forward, we must also consider the ways that outside threats will continue to influence higher education. Universities still look to unfree nations for funding and partnerships and, given the cuts they are facing domestically and the general decline of freedom abroad, that is unlikely to change any time soon. Indeed, we may even see authoritarian nations like Saudi Arabia become bigger participants in the global higher education sphere.
In the closing chapter of my book, I detail ways that higher education can adjust to better protect itself and its community members in an unfree world. This was always going to require some sacrifice and suffering on the part of universities, but this is even more so the case now, as the conditions on the ground here in the U.S. continue to complicate matters.
Universities have long promised that their values—academic freedom, free expression, and institutional autonomy—are sacred and prized above all else. Now, more than ever, is the time for them to prove it.
