In the wake of Donald Trump’s election, many colleges and universities vowed to become “sanctuary campuses” for students in the country illegally. The matter will take on a special urgency in the event that soon-to-be President Trump repeals the executive-ordered Deferred Action for Childhood Arrivals program, which “deferred” the enforcement of immigration laws for those who came here as children. The practical consequences of a “sanctuary campus” policy remain murky (as is often the case when college administrators take direction from student protesters). Will openly harboring illegal aliens jeopardize colleges’ federal funding, for instance? In an age of funding-backed executive overreach puppeteering campus policy, it would be dangerous to assume otherwise.
Asked whether an agenda-driven Trump administration could weaponize the federal agency against sanctuary campuses, the American Enterprise Institute’s Rick Hess said, “The attorney general or Department of Education could declare them ineligible [for grants and federal aid]⌠Presumably.” Given the stated priorities of the incoming administration and the Obama administration’s pattern of funding-backed agency mandates to circumvent Congress, it’s no doubt a solid presumption.
The idea for a “sanctuary campus” follows from the sanctuary city concept. At least 200 cities, currently refuse to prosecute illegal aliens for immigration violations, even though failure to cooperate with Immigration and Customs Enforcement puts them at odds with federal law. In so doing they risk losing their flow of federal money, assuming incoming Attorney General Jeff Sessions does, in fact, mean businessâand assuming President-Elect Trump makes good on a campaign promise to cut them off. Colleges may risk the same in designating themselves sanctuaries.
Withholding federal funding from campuses could prove a simpler matter than prosecuting cities that don’t go out of their way to facilitate ICE’s enforcement. And, while such a move on behalf of the Department of Education would technically require an act of Congress, the American Council on Education’s Terry Hartle said, “I’m sure the Department of Education could cook up a rationale for [withholding funds from sanctuary campuses].” Hartle, Senior Vice President for government and public affairs at the council, added that with whatever statutory rationale the department finds, “it would be clear that this is not really anything that was envisioned originally.”
Still, such a move would hardly be unprecedented. “Could the federal government withhold funds from an organization? Sure,” Hartle told me. Just so, “The Department of Education can take away federal aid funds for institutions that violate Title IX.” Since 2011 colleges and universities have scrambled to meet the requirements of Title IX of the Higher Education Act, an anti-discrimination rule which the Department of Education creatively reinterpretedâor “clarified,” depending whom you askâwith a mandatory funding-backed guidance. The controversial guidance, a “Dear Colleague” letter issued by the department’s civil rights office, was not subject to public comment or congressional approval.
“Do they have the authority to do that under some immigration statutes? Yes,” Hartle also said. Although, “Dual legislation [between DHS and ED] might be necessary to make that possible.” Agency officials, at the Departments of Education and Homeland Security, need only locate and clarify existing statutory basis for withholding much-needed Title IV funding, used for grants and financial aid, from schools that willfully buck immigration law.
Whether the Trump administration will actually seek to withhold federal funds from sanctuary campuses remains to be seen, but Hartle advises the college and university presidents who come to the American Council on Education concerned, “Until we see some different signals, I think we should take them at their word.” If overturning DACA and closing “backdoor amnesty” remain priorities, the administration may find a way to push its agenda to the furthest extentâjust as their predecessors did. And colleges, according to the American Council on Education, should be prepared.
Asked whether “sanctuary” could put a school’s federal funding at risk, Brett Sokolow, executive director of the Association of Title IX Administrators, said it would have to be up to Congress “to enact a law⌠that would authorize fines and fund restrictions specifically related to sanctuary.” Sokolow’s organization, ATIXA, helps colleges and universities comply with Title IX regulations. Concerned colleges routinely spend tens of millions on Title IX consulting. Sokolow’s ATIXA has rapidly grown since the department redefined the 37-word statute in order to centralize and redefine internal disciplinary responses to everything from vaguely offensive speech to sexual assault. Still, agency guidance cannot establish “funding restrictions without a clear statutory basis,” Sokolow said. “That basis may exist, but was not enforced over the last 8 years.”
Landing on such a statutory basis would require combing through existing regulations, perhaps finding a clause in the Higher Education Act to reinterpret a la Title IX. And, dusted-off statutory basis in hand, the executive branch could pursue its agenda without the legislative authority constitutionally required for such an actionâthanks to prominent precedent for circumventing Congress via executive or federal agency action.
Source: Weekly Standard
