As the Trump administration considers its actions concerning DACA and undocumented immigrant students, several colleges and universities have decided to declare ‘sanctuary campus’ status. This article provides an explanation of the origin, legality, and considerations regarding the issue through the perspectives of an attorney, college administrator, student, and university president.
By Leo Versel
On November 18, 2016, two schools in Portland, Oregon, Reed College and Portland State University, became the first higher education institutions in the United States to officially declare their college campuses as sanctuaries.
The emerging sanctuary campus movement has sparked a divide between the interests of college and university administrations and the desires of students regarding the necessity of declaring sanctuary status. As the activities and policies of the Trump administration with regards to immigration and education begin to take effect, Reed is one of 13 colleges and universities that have chosen to address the anxieties of their undocumented students by seeking to provide as much protection as possible for them.
Reed College President John Kroger responded to the concerns of the college’s student body, comprised of 1,400 undergraduate students. Kroger specifically addressed the demands of “Reedies Against Racism,” a group of student protesters who occupied Reed’s admissions office, putting pressure on the school’s administration to establish the college as a sanctuary campus.
“As a sanctuary college, Reed will not assist Immigration and Customs Enforcement (ICE) in the investigation of the immigration status of our students, staff, or faculty absent a direct court order,” Kroger declared in a November 18 statement published on Reed Magazine‘s blog.
“In addition, Reed College does not discriminate in admission on the basis of immigration status,” Kroger’s statement reads. “We meet the full financial need of all admitted students, including undocumented students. This means we provide institutional financial aid to make up for the federal aid that these students are unable to apply for.”
The same Reed Magazine blog post states that Kroger signed a letter in support of the Deferred Action for Childhood Arrivals (DACA) program. The DACA immigration policy was founded in June 2012 under President Barack Obama. DACA allows some undocumented immigrants who entered the US prior to their 16th birthday, often referred to as “Dreamers,” to request a two-year period of “deferred action” from deportation, subject to renewal. DACA additionally authorizes work permits for “dreamers.”
During a phone interview in mid-April 2017, Reed College’s Director of Communications, Kevin Myers, said that the decision of the school’s administration to declare sanctuary for DACA and undocumented immigrant students was an easy one to make.
“Before we declared ourselves a sanctuary campus, some of the protections that are associated with that designation were already in place,” Myers said. “We had never cooperated with ICE without a warrant. We never took immigration status into consideration in our admission policy. When the petition calling for Reed to declare sanctuary went around, it was a pretty easy decision for us.”
Myers said that the sanctuary campus petition was started by three Reed student groups: Allies Against Racism, Latinx Student Union, and Reedies Against Racism. Before many students, faculty, and staff had the opportunity to sign the petition, Kroger declared Reed College a sanctuary campus the same day that the petition was started.
“I think President Trump’s travel ban was the impetus for the petition,” explained Myers. “It was a time of great fear and uncertainty on campus. The petition had a lot to do with us making our statement that we were going to stand behind our core values. I think there comes a time when it just makes sense to stand up, reassert your values, and assure students that you’re going to stand by them.”
“We weren’t seeking attention from our decision,” Myers added. “We were seeking to comfort our students, faculty, and staff members to let them know that we were going to do everything we could do to protect their rights.”
Though Myers said most students at Reed felt proud that the school’s administration was “standing up to a policy that clearly ran afoul of the law,” he revealed a factor that significantly helped Reed make its decision. Multnomah County, in which Reed College is located, the surrounding city of Portland, and the state of Oregon are additionally all sanctuaries. This mitigates the potential for Reed’s undocumented students to risk deportation.
Portland State University (PSU) is also located in Multnomah County. PSU President Wim Wiewel officially declared his public university, home to over 21,000 undergraduate students, a sanctuary campus on the same day as its neighbor, Reed College. Wiewel explained the rationale behind his decision and its implications in a November 27, 2016 op-ed published in The Oregonian.
“Intense rhetoric during and since the presidential election about the possibility of mass deportations of undocumented immigrants left many of our students with very real fears for their future,” Wiewel wrote in his op-ed. “As Oregon’s most diverse college campus, and as the university of choice for thousands of Latinos, we must offer a safe and welcoming educational environment.”
Wiewel went on to note that PSU has more than 80 dreamers protected by the DACA program who came to Oregon with their undocumented parents.
“They were raised here, went to high school here and now attend PSU,” wrote Wiewel. “Declaring ourselves a sanctuary gives them reassurance that we at PSU are committed to their safety and security.”
In this op-ed and his official statement on PSU’s website, Wiewel explains what PSU’s declaration as a sanctuary campus means to the university’s students, thus providing a viable working definition for the meaning of this term.
First, PSU’s Public Safety Office will not enforce federal immigration laws, as that is prohibited by Oregon’s state law. Second, the university will not assist with or permit to any immigration enforcement activities on campus, unless it is legally compelled to do so, or in the event of a clear threat to the health and safety of others. Finally, and perhaps most relevant to other sanctuary campuses across the nation, Wiewel wrote that PSU will not share any confidential student information, including immigration status, with the federal government unless it is required by law.
Christopher Lasch, an associate professor in the University of Denver Sturm College of Law’s Criminal Defense Clinic, expanded this definition by describing four principal categories of actions that a sanctuary campus may take to protect their undocumented students, staff, and faculty.
“One of these categories is security,” Lasch said in a phone interview. “A campus can be made secure from intrusion. Some campuses have said that ICE participating in immigration enforcement activities is not welcome on their campus. On a certain level, this is a mirror image of the ‘Sensitive Locations’ policy that the federal government has, which says that ICE shall not engage in immigration enforcement efforts on school property.”
“Another category is privacy,” Lasch explained. “This means offering students the guarantee that their information will be kept private as much as possible and not turned over to the federal government. This category dovetails pretty nicely with the Family Educational Rights and Privacy Act (FERPA), which does provide some broad protection for students’ information.”
“There’s also the question of what degree campus security will be permitted under the school’s rules to engage in any immigration enforcement,” Lasch continued. “The last category is actions of support by a college or university. Does the campus administration actively take measures that would show support for their non-citizen students? Does the school take efforts like signing on to amicus briefs regarding the travel ban, for example? Does the university take a position locally with the community? And does the university offer funding for students who cannot get federal funding?”
Lasch also discussed the legality of sanctuary campuses. He specifically drew a parallel between the sanctuary city and sanctuary campus movements and how both have been treated by the Trump administration.
“The government has threatened to defund sanctuary cities, and it regularly claims that sanctuary cities are violating federal law,” Lasch said. “The only federal law they have ever pointed to is a statute called 8 U.S.C. 1373. It is a provision of the Immigration and Nationality Act that prohibits local governments from making rules that prevent local officials from communicating about a person’s citizenship or immigration status with the federal government.”
Lasch noted that 8 U.S.C. 1373 is the only law that the Trump administration has put forth as a federal law that sanctuary policies may be violating.
“For private universities, the answer is fairly simple, which is that this law does not apply to them. The University of Denver, for example, does not have to be concerned that it would be violating federal law.”
“For public universities, the calculus might be a little bit different,” Lasch explained. “What I’ll say about this is that the threat from this administration thus far has been to cut off federal funding to so-called ‘sanctuary jurisdictions.’ However, it is not at all clear if this threat would even include any kinds of funding that would touch public universities. Also, there are a series of legal hurdles that the administration will have to jump through to make good on these threats of cutting off funding.”
Lasch discussed how this statute that the federal government is relying on is “open to some serious constitutional challenge.”
“The 10th Amendment prevents the federal government from telling local governments how to run their business, but that is exactly what 8 U.S.C. 1373 does,” Lasch said. “It is specifically directed at local governments and tells them what they can or cannot do in terms of setting up rules for their employees. So, there is a strong 10th Amendment challenge, as well as a question of whether this law would even apply to universities.
“This law would seem to be at odds with the idea of keeping students’ records private. One scholar has argued that FERPA is not affected at all by this 1373 statute, and that universities and other educational institutions can effectively keep these documents away from the federal government. I think the claim that sanctuary policies violate federal law, particularly when getting into the sanctuary campus area, is fairly wildly exaggerated by the administration.”
Despite growing concern among some students who are upset with or may fear being affected by the actions of the Trump administration, as well as petitions and activism in favor of the sanctuary campus issue, many colleges and universities have not declared sanctuary status.
An April, 2017, Google map of sanctuary campuses indicates that students from 125 colleges and universities have signed petitions that have not been responded to by their school’s administrations. Three institutions, New Mexico State University, St. Mary’s College of Maryland, and Wake Forest University, have said they will not declare their schools as sanctuary campuses. 64 colleges and universities have committed support to their DACA and undocumented students, while only 13 have officially declared as sanctuary campuses.
American University (AU) in Washington, D.C. is one school that has decided against declaring itself a sanctuary campus. In a February 10, 2017 memo addressed to the school’s community, AU President Neil Kerwin wrote that although the private university of over 13,000 students “does not have the authority to exempt itself from federal immigration law,” he was committing the university to protecting its undocumented students.
“I have concluded that the findings of many other universities and respected immigration attorneys are correct, in that asserting such a status would have no basis in the law,” Kerwin wrote in this memo. “I share the concerns of others that claiming such status could indeed be counterproductive and lead to greater risk for the very students we seek to protect.”
In an interview with Kerwin on April 26, just over two months after he made his final decision, the outgoing AU president defended his decision not to declare the university a sanctuary campus.
“What I’ve attempted to do here, and I think I’ve done it with the support of the entire administration,” Kerwin said, “was to ensure that we communicated to the students who feel that they are at risk. We wanted to let them know that we will do everything we can that is normally associated with sanctuary status, without asserting the term.”
Kerwin cited three reasons that factored into his decision: the lack of legal standing for AU if it declared sanctuary, concern that designating the university a sanctuary campus would put undocumented students at greater risk, and potential loss of federal financial aid.
“I felt we could provide the kinds of protections to students that are meaningful and consistent with the concept of sanctuary, without asserting a term that I felt had no legal bearing or standing and was a risk to the very people we were trying to protect, and perhaps to the entire campus,” Kerwin said.
“When you’re in a position like this one, and you’re faced with a deep concern for the students who could be affected, while taking into account the other interests that are out there, I thought we made a reasoned decision.”
Outgoing AU Student Government President Devontae Torriente described the student body’s reaction to Kerwin’s decision after it was made.
“I think a lot of students were confused and conflicted because for us, it was the logical next step in making sure that we were taking a firm stance against what was happening,” Torriente said in an interview. “I think for the students who may have understood the decision, they may have been conflicted in understanding that declaring sanctuary had the potential to do more harm than good.”
Torriente said he met with certain members of the AU community and administration prior to Kerwin’s decision about what it would have meant to be a sanctuary campus and why students were advocating for the issue. Additionally, Torriente said that he spoke with the AU administration about why he believed AU should become a sanctuary campus.
“I still hold the belief that being a sanctuary campus would be taking the right stand and ensuring that we would be intentionally advocating for the needs of our undocumented students,” Torriente said. “I personally feel that the sanctuary campus movement is the direction that we should be heading in.”
Making the decision to declare a college or university a sanctuary campus is complex and entails many difficult ethical and legal considerations. Some higher education institutions may feel a strong desire to protect their students from potential deportation. Others may shy away from being punished by the federal government for noncompliance with federal law.
Much remains uncertain, but one thing is clear. The sanctuary campus issue will continue to change during the Trump administration, particularly if the administration begins to target DACA and other undocumented immigrant students. The question of whether a college or university decides to declare itself a sanctuary campus or otherwise protect their undocumented students from immigration enforcement will likely remain an issue for many months to come.