'Sanctuary Campuses' Defy Trump -- Though at a Risk

'Sanctuary Campuses' Defy Trump -- Though at a Risk
Nathan Lambrecht/The Monitor via AP
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With the Trump administration’s immigration policy taking shape and the threat of increased deportations looming, nearly a dozen colleges around the country have begun taking a cue from so-called sanctuary cities to shield their undocumented students. Calling themselves “sanctuary campuses,” these universities say they will refuse to aid federal officials in the event of a raid on their property.

Yet the majority of the self-designated campuses have one thing in common: They are private schools. For the country’s undocumented students – over 90 percent of whom attend public institutions – these new havens would do little good.

During a time when campuses have become the epicenter of anti-Trump protests, why haven’t public schools followed the lead of their private counterparts? The answer largely comes down to funding. While the sanctuary designation always comes with financial risks, those risks are greater if a college receives most of its funding through a state government.

Eunice Cho, a staff attorney with the Immigrant Justice Project of the Southern Poverty Law Center, says that because state universities are effectively run by governor-appointed boards of regents, there is a “direct political link” between those schools and state legislatures, which are more sensitive to political pressures. Private schools’ reliance on federal funding -- removal of which would be difficult under current law -- “gives them more autonomy and lets them provide additional safety procedures for their students.”

State legislators are already threatening to remove funding from public schools if they declare sanctuary status. Representatives in Alabama and Texas have introduced bills to strip millions of dollars in funding for schools taking that step.

Cho also referenced a bill moving through Georgia’s legislature that would affect private colleges in the state. As a result, Emory University in Atlanta withdrew its consideration to become a sanctuary campus less than three weeks after the bill was introduced.

Emory President Claire Sterk’s statement regarding the decision read, in part: “Declaring ourselves a sanctuary campus, which has potent symbolism, could have the collateral effect of reducing funding for teaching, education and research, directly harming our students, patients and the beneficiaries of our research.”

The bill’s sponsors and Emory University did not respond to RealClearPolitics’ interview requests.

The threat of losing federal funds, however, is not as great. Peter McDonough, vice president and general counsel at The American Council on Education, said the organization has so far “not identified any federal policies that would offer a basis for sanctuary campuses to lose funds” because sanctuary status “has no legal standing.” Though McDonough said that could potentially change with an act of Congress, “it is not at all clear that there is a vehicle to cut off federal funding for schools with what is currently in place.”

However, he warned that matters could get more complicated if U.S. Immigration and Customs Enforcement moves onto campuses. Public universities cannot reasonably bar law enforcement from their grounds. The same may hold true for private institutions, McDonough noted, explaining that the “time, place and manner” restrictions under the First Amendment stipulate that the public is invited to privately owned spaces.

He likened these restrictions to a shopping mall: While the building itself may be privately owned, the walkways of the mall are considered a public space. A mall owner, for instance, could not reasonably request to bar some people from those areas while permitting others.

Simply put, McDonough continued, “many campus spaces are open to the public. A private university like Georgetown couldn’t simultaneously have public spaces, and then not allow ICE on them.”

Cho concurred: “Constitutionally, there is probably no legal limit to ICE entering schools.”

Cho cited an internal ICE memo instructing agency officials not to carry out immigration enforcement on “sensitive locations,” a designation that includes college campuses. But the problem, Cho said, is that this memo “is not like the Constitution. [It’s] more like an internal guideline – it is not legally binding in any sense.” She also referenced the Obama administration’s deployment of ICE agents just outside of school grounds, including at bus stops, as a workaround for any “sensitive location” concerns.

Furthermore, McDonough said public schools may have certain obligations to ICE under state laws. It is likely that campus police forces, for instance, have law enforcement requirements they must meet.

Despite these legality issues, Michael Roth, the president of Wesleyan University, approaches the sanctuary label more holistically.

As one of the first colleges to declare itself a sanctuary after the election, Roth has been surprised by the legal discussion surrounding the university’s decision. He believes that that focus misses a larger point. “The fact that it isn’t a legal word is not relevant at all,” Roth said. “What is important is that mass deportation has no legal standing. We must say mass deportation is illegal again, and again, and again. It does not involve the due process of law and in fact would depend on extra and likely illegal actions by law enforcement.”

Roth asserted that by declaring sanctuary status, colleges are in fact asking that the federal government be held accountable to rules already in place, as many of the protections listed in sanctuary declarations are currently covered under student privacy laws.

“People have expressed a fear about losing funding,” Roth noted, “but the federal government is not allowed to punish schools for using policies to protect their students’ entitled rights. Vengeance is not allowable under law.” If the school were penalized, Wesleyan University would take its case to court, “because it would be a violation of the Constitution,” he said.   

Yet Roth knows that not all institutions may be able to make the same call, acknowledging that public schools are “at the mercy of their state legislators.”  

But he believes the problem involves issues far greater than the public vs. private divide: “I think that it says something about the urgency of our political dilemma when asking the government to obey their own laws inspires fear in its citizens.”

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