What Did You Say?

Universities Announce Plans to Defy Federal Immigration Enforcement

By: Jonathan Turley | January 31, 2025

Read more at https://jonathanturley.org/2025/01/30/universities-announce-plans-to-defy-federal-immigration-enforcement/

With the election of Donald Trump, the federal government and both local and educational authorities are on a collision course over immigration policies. Many states and cities have reaffirmed that they will oppose any deportation efforts, including another recent chest-pounding interview by Illinois Gov. J.B. Pritzker. It is likely that the federal government will squeeze federal funding for sanctuary states and cities, though such efforts can trigger “commandeering” and other legal challenges. Universities may be in a more precarious position, but some like the Los Rios Community College District in California are doubling down on plans to oppose any federal enforcement efforts.

Various university and college presidents have reaffirmed their support for undocumented students and staff, including most recently Fordham University President Tania Tetlow. However, the Los Rios Community College District seems to have laid out a more concrete plan to oppose federal enforcement, a plan that was referenced in a January 28 email. The district covers American River College, Cosumnes River College, Folsom Lake College, and Sacramento City College.

The email states that “[t]here have been reports all over the country of increased immigration raids in association with Executive Orders tied to immigration enforcement.” It seeks to address the “[f]ear … widespread throughout the undocumented and ally communities about their safety and the safety of their families and loved ones.”

Just after Trump’s election, Los Rios published a “Compact in Support of Undocumented and DACA Students and Employees,” including the possible concealment of immigration status.

Here are the eight commitments:

1. Los Rios will do everything in its power to fight for the rights of our immigrant and undocumented students and employees and will always do everything possible to uphold the values of our institutions.
2. Los Rios stands with state and local leaders who have pledged to do everything possible to defend the rights and protections of immigrant and undocumented Californians.
3. Los Rios commits to advocating for a permanent legislative solution to the Deferred Action for Childhood Arrivals (DACA) and a pathway to citizenship for our immigrant communities.
4. Los Rios will immediately provide additional resources to our Undocumented Resource Centers.
5. The Los Rios Police reaffirms its commitment to not participate in immigration-related activities, including arresting and/or detaining students, consistent with organizational values and state law.
6. Los Rios will protect students’ rights and confidentiality and will not share the immigration status of students or employees.
7. Los Rios, its colleges, and partners will do a full review of internal policies and regulations to ensure that we are doing everything possible to protect the rights of students and employees.
8. The Los Rios Colleges Foundation will create Dream Center Funds with resources for each college, administered by the Undocumented Resource Center on each campus. The Foundation will encourage other community members, employees, and private and corporate funders to give support to undocumented students to help remove critical barriers to their success, such as paying for DACA renewal fees, legal fees, purchasing laptops, and additional resources.

Number 6 is particularly interesting in promising an active role to conceal or withhold immigration status information.

We have been down this road before. Schools previously fought this battle over efforts to bar military recruiters. While I have been a vocal supporter of gay rights on many fronts, I was one of those who opposed the litigation that my law school joined. At the time, I stated that it was not only a clear loser on the law but also represented a type of hypocrisy: We insist that we cannot allow discrimination, but if money is at stake, we will allow it.

In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), the Supreme Court unanimously ruled that the federal government, under the Solomon Amendment, could constitutionally withhold funding from universities if they barred military recruiters from interviewing students.  The Solomon Amendment denied federal funding to an institution of higher education that “has a policy or practice … that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983(b) (Supp. 2005).

It is easier to limit funds for universities, but it can still raise constitutional problems from free speech to associational rights.

In Rumsfeld v. FAIR, Chief Justice John Roberts noted that such laws could run afoul of the unconstitutional conditions doctrine “if Congress could not directly require universities to provide military recruiters equal access to their students.”  He then added:

 “This case does not require us to determine when a condition placed on university funding goes beyond the ‘reasonable’ choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958). Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”

The coming challenges could raise the question left open in Rumsfeld v. FAIR. However, the question is whether universities, particularly state institutions, want to go down this road of confrontation rather than cooperation.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”