Today, the Trump Administration is engaged in a broad assault on campus life, with repression of speech in defense of Palestinian rights as the tip of the spear. This includes arresting, detaining, and threatening with deportation members of university communities for speech the government opposes. In this climate, many institutions of higher education are trying to keep their heads down, or worse, capitulating to appease the Administration. But now is the moment that they must live up to their professed values. We write here to describe what that means in one context: where claims are made that associate faculty, staff, or students with terrorism. University responses must be grounded in commitments to free speech, academic freedom, and due process. Indeed, we strongly urge university and college leaders to refuse to do anything beyond what they legally are required to do where it might harm community members, including non-citizens who are especially vulnerable in this moment of acute repression. Universities cannot fulfill their mission if they do not protect students, faculty, and employees in this dangerous time.
Our concerns are not hypothetical. As has been widely reported, a month ago, Dr. Helyeh Doutaghi, the Deputy Director of the LPE Project, was targeted online by an AI-powered substack – a publication with no identifiable reporters or writers – effectively accusing her of being a terrorist. The article cited alleged involvement with a pro-Palestinian organization that six months ago was designated by the Treasury Department as a “sham charity” under US law, with connections to a sanctioned entity. Her alleged involvement was prior to the organization’s designation, and the article seems to have been intended to jeopardize Dr. Doutaghi’s employment at Yale University, and, by extension, her visa status. Within 24 hours of learning of the article, Yale University put Dr. Doutaghi on administrative leave, barring her access to campus and her university email account. Three weeks later Dr. Doutaghi was terminated, with just weeks left on her contract. Yale made no finding of wrongdoing; it only alleged lack of cooperation in its investigation, a characterization Doutaghi and her lawyer dispute. Yale’s reaction appears to us fear-based and excessive, particularly given the important speech and due process issues involved.
We also write in the context of the ongoing campaign by the U.S. government to accuse members of campus communities more broadly of connections to terrorism (aided by private actors who are aggressively targeting student protestors, compiling dossiers, using facial recognition and funneling their names to the government). These allegations can be entirely vague and conclusory – as with Mahmoud Khalil, who was accused of being “aligned” with Hamas for his participation in protests. Such accusations traffic in a long and troubling history of the government tarring opposition to war as support for the state’s designated enemies.
The breadth of material support laws has long invited extreme prosecutorial discretion. Combined with the difficulty of challenging a designation of an entity under the law, the potential for abuse is evident. In this climate, students, scholars, and others around the country can easily be improperly accused of violating material support laws on the basis of political speech by mischaracterizing such speech as “assistance or propaganda provided under the direction” of a designated Foreign Terrorist Organization like Hamas.
Indeed, such accusations are already the basis of civil suits, including those filed in Virginia and elsewhere against American Muslims for Palestine and National Students for Justice in Palestine. In this setting, and given the resources and technologies that can be brought to bear to accuse individuals of association or membership in organizations – which may have no formal “membership” status at all, making disproving such membership an Orwellian exercise – there is every reason to think that universities may be pressed to take immediate and harsh action, or to start investigations, if only to quell media attention and appear compliant with this lawless Administration’s wishes. Universities must prepare for this, learn about these legal frameworks, refuse to read the grey zones against vulnerable members of our communities, and refuse to operate on the basis of fear rather than legal necessity or moral principle.
The bottom line for universities and colleges should be clear: they must maintain commitments to speech and associational rights on campus and to their due process and anti-discrimination commitments under employment law. Conclusory allegations of “alignment” with terrorism on the basis of speech should be unequivocally condemned and the basis of no action at all. Furthermore, universities and colleges should be aware that campus members may be accused of membership in sanctioned organizations, and these institutions must be prepared to stand firm against such accusations where the law does not require otherwise.
Sanctions law in the US is complex and has both civil and criminal aspects. But again the bottom line is clear. With respect to speech, designations do not automatically produce new constraints on ordinary expressive or associational activity. It is true, of course, that the law criminalizes providing certain goods and services to designated entities, but speech, and indeed membership alone, are treated differently, because of the First Amendment. Under current Supreme Court jurisprudence, nominal membership, even of a sanctioned organization, is not illegal, and speech – even including professed support for the organization’s objectives or tactics – can constitute material support to a designated foreign terrorist organization only if it is undertaken in coordination with the designated entity.
Thus, universities are not required to act on allegations concerning an individual’s views about, or nominal membership in, a designated entity. Nor do universities face legal jeopardy solely because they enroll or employ someone against whom such allegations have been made. Moreover, at a time when third parties are regularly using social media, assisted by bots and AI, to harass individuals on the basis of their protesting the atrocities in Gaza, and make conclusory allegations of “support” or “alignment” with terrorism, universities must approach such claims with great skepticism. It is easy for bad actors to make these claims, effectively weaponizing universities and colleges against their own members. Indeed, too ready a rush to take action or to launch investigations chills precisely the type of speech – speech contesting an extreme moral outrage – that should be part of any healthy campus culture.
Employment law in the US generally gives employers – including universities and colleges – great discretion, but should not be used as a cover for universities to act hastily or harshly. For instance, universities should not adopt immediate suspension as a matter of course, because it has extraordinary implications for students, staff, and faculty engaging in speech, research, and other expressive activity. Administrative leave can of course be an appropriate step in instances where employees are charged with crimes or acts that generate clear risks to other employees. But a university’s duty to promote fact-finding also militates against acting rashly, particularly in the current context of repression. The harms of overreacting are stark where students or employees are noncitizens, because their visa status may be put into jeopardy, in a world in which immigration officials are snatching students and university workers from the street once their visas are revoked (or even before revocation).
Finally, employers also are legally forbidden to discriminate. This includes ensuring that there is consistent application of process, regardless of the underlying identities and expressive beliefs of the employees. Especially when numerous organizations are openly targeting the advocates of Palestinian rights, it is critical that guilt by association does not rule. Campuses have stated commitments to free inquiry and evidence-based argumentation. If they do not follow these commitments, but have in past responses to similar situations, this can raise an inference of discriminatory motive. In some states, employers have additional legal obligations not to take adverse action in response to First Amendment protected speech. Moreover, employers violate antidiscrimination laws when they implement the discriminatory demands of third parties, even when they do so only to appease those third parties. This principle is particularly important in this context where accusations of “terrorism” are a widely-recognized vehicle for anti-Palestinian, anti-Muslim, and anti-Arab racism. Such racism can also underlie accusations that critics of Israeli policy are necessarily motivated by antisemitism or support for Hamas.
Make no mistake: the language of “terrorism” is easy to mobilize, and has long been the go-to tool of authoritarians seeking to repress opposition. We have little doubt that this strategy will escalate here in the US, particularly given the reality of a Congress poised to expand the executive branch’s draconian terrorism designation powers to domestic non-profits. Such powers are a fundamental assault on any democratic system. And in the face of these threats, employers must commit to bedrock principles of due process, free speech, and the fair treatment of their employees and students. This is of vital importance for universities, which hold themselves out as defenders of truth seeking and dissent. To do otherwise is to abandon their collective mission at precisely the time of greatest urgency and need.
