Republicans furious over colleges’ response to Hamas’s recent attacks on Israel are threatening universities’ funding and the visas of foreign students, though legal experts are divided on if such moves would stand up in court.
“Under the Trump administration, we will revoke the student visas of radical anti-American and antisemitic foreigners at our colleges and universities and we will send them straight back home,” former President Trump said in Iowa.
Several of his GOP primary challengers are calling for similar actions.
While First Amendment experts balk at the idea, there are split opinions on how the issue would fall legally in the courts.
“I think both of these ideas are nonsense and completely antithetical to the spirit of the First Amendment,” said Jared Carter, an assistant professor of law at Vermont Law and Graduate School.
The issue arose after multiple universities across the country had student groups who released statements that praised Hamas or blamed Israel for the initial Oct. 7 terror attack.
The biggest controversy came out of Harvard, where more than 30 student groups initially signed a statement after the Hamas attack that said they “hold the Israeli regime entirely responsible for all unfolding violence.”
That led to fresh calls from Republican presidential candidates such as Trump, Florida Gov. Ron DeSantis and Sen. Tim Scott (S.C.) to stop funding to these schools and kick out of the country foreign students who participated in such statements or protests.
Scott said in an interview on “The Sean Hannity Show” that student protesters in support of Hamas who are on here on visas “should be sent back to their country.”
And DeSantis said over the weekend, “When I’m president, if foreign students are out there celebrating terrorism, I will cancel their visas and send them home.”
While the president could try to issue an executive order to enact this sort of policy, experts are divided on if such a move would survive court challenges.
Republicans such as Sens. Marco Rubio (Fla.) and Tom Cotton (Ark.) have also recently made moves advocating for foreigners who support Hamas to lose their visas.
Supporters of the expulsions say individuals who aren’t American citizens don’t have the same free speech rights. Others, while not agreeing with that position, acknowledge the courts have taken the position that there are differences in First Amendment rights between the groups.
“In my view, unfortunately, that’s correct. The courts have been much more permissive in allowing the federal government to manage immigration both allowing people in and deport based on political viewpoints. They’ve just been more permissive under the First Amendment,” Carter said.
“There’s a series of U.S. Supreme Court cases that basically say that in making determinations about whether or not somebody should be admitted or have a visa in the United States that the government can consider their political viewpoints, which obviously, for residents and U.S. citizens, that would be completely inconsistent with the First Amendment,” Carter said. “So I think that the president has more flexibility when it comes to immigration.”
But Kevin Goldberg, a First Amendment specialist at Freedom Forum, says it is clear-cut that both groups in the country have the same free speech rights.
“Once you’re in the country, you receive the protection of the First Amendment, whether you’re a citizen or not,” Goldberg said.
The vagueness in the proposals from the presidential candidates on what a college student would have to say to be punished “raises serious First Amendment concerns,” he added.
Much of the protests among students have been calling for a cease-fire between Israel and Hamas or denouncing actions taken by Israel after the country declared war on Hamas. Others have participated in protests such as one in New York City, which lawmakers on both sides of the aisle denounced for antisemitism.
The GOP 2024 hopefuls are also looking at defunding colleges that have allowed these protests to happen or did not release statements quickly enough condemning Hamas.
Scott introduced legislation in the Senate last week to ban federal student aid to schools that allow antisemitic events to occur.
“Any university or college that peddles blatant antisemitism, especially after Hamas’ brutal attack on Israeli civilians, women and children, has no place molding the minds of future generations, never mind receiving millions of taxpayer funds to do so,” Scott said.
Legal experts, however, believe the courts would clearly rule against efforts by Congress or a president to cut funding to schools based on their students’ viewpoints.
“I think if a president tried to withhold funding from colleges, universities simply because they had an organization on campus that supported Palestinians, I think the likelihood of that being constitutional is very low,” Carter said. “And, furthermore, particularly state universities, the Supreme Court has said that the First Amendment applies to actions by state universities, so if a state university said they were going to fund student groups and they decided not to fund the student group because it’s supported Palestinians, then I think the school would be susceptible to being sued for violating the students’ First Amendment rights.”
“And so I just think that it’s absurd to think that a president can come in and tell schools they will pull funding from schools that simply are complying with their constitutional obligations,” he added.