This post is part of a series looking at the law and political economy of higher education.
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Since student protests against Israel’s violent campaign in Gaza began in October 2023, public and private actors have attempted to delegitimize this activism by accusing these students of supporting terrorism and even being terrorists. Now, after nearly eight months, those smears have been translated into concrete legislative proposals at both the state and federal level — efforts that implicitly and, at times, explicitly depict students, faculty, and the university itself as potential enemies of the U.S. national security state that must be disciplined and controlled.
If the securitization of the university becomes embedded in law, the long-term negative impacts will be substantial. It is not only pro-Palestinian activists who will be threatened by these efforts — though they will bear their immediate brunt — but also the cornerstones of university life, including the communal bonds that sustain university campuses, academic freedom, and the very nature of higher education itself.
Focusing on recent congressional legislation, this post—which is part of a larger work-in-progress—maps the landscape of university securitization and considers the potential impacts of these changes. It also argues that, despite their intended destructive consequences, these legislative efforts may have the unintended effect of strengthening the solidarity that has been created over the past several months of pro-Palestine activism across U.S. universities.
Stripping Universities of Their Non-Profit Status
The most concerning proposed federal law takes aim at the tax code. H.R. 6408, which has already passed the House and is currently pending before the Senate, would terminate the tax-exempt status of “terrorist supporting organizations.” Intended to respond to pro-Palestine student organizing, the law gives the Secretary of the Treasury unilateral authority to suspend the 501(c)(3) status of any U.S. organization they determine has provided “material support” to certain kinds of groups in the preceding three years.
Thanks to its breadth, the bill threatens First Amendment protected activities on university campuses nationwide. It adopts the criminal law definition of “material support,” which prohibits an expansive set of activities that can include speech acts “coordinated” with terrorists. Under H.R. 6408, a potentially limitless number of groups are barred from receiving this brand of support. They include groups designated as terrorist organizations by Executive Orders that are “related” to terrorism and that impose economic or other sanctions under the International Emergency Economic Powers Act—an expansive authority that leaves much discretion within the hands of the president. They also include domestic and foreign entities defined as “terrorist organizations” under immigration law. This definition, which is one of the broadest under federal law, includes groups that have not only been formally designated as Foreign Terrorist Organizations (FTOs) by the Secretary of State but also any group of “two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” material support of an FTO.
What does this all mean in practice? Under H.R. 6408, a university could potentially be stripped of its 501(c)(3) status for providing “material support” to an informal or formal grouping of two or more persons, like say a chapter of Students for Justice in Palestine (SJP), where the SJP chapter is found to have provided material support to an Foreign Terrorist Organization, such as Hamas. While the idea that a US-based student organization could be providing “material support” to a designated FTO may seem ludicrous (it is), pro-Israel politicians and groups have been aggressively pushing the baseless narrative that SJP chapters are fronts for Hamas since October 7 — claims that would create existential concerns for universities if H.R. 6408 becomes law and give them clear incentives to ban SJPs and other pro-Palestine groups from their campuses for First Amendment-protected activities.
Expanding Section 702 Surveillance
Congress is also attempting to turn already-existing laws and programs created during the War on Terror against students and faculty. On April 19, as pro-Palestine student encampments were beginning to mushroom, Congress reauthorized an amended and expanded version of one of the most-notorious post-9/11 laws—Section 702. Originally adopted in 2008, Section 702 provided retroactive legitimacy to an illegal mass surveillance program created by the Bush administration. While the law is purportedly aimed at gathering intelligence on non-Americans located abroad, its design inevitably sweeps in Americans’ private communications—as demonstrated by the government’s repeated efforts to use Section 702 intelligence against individuals inside the United States, including Black Lives Matter protestors and journalists.
This warrantless mass surveillance law is a bête noire for many civil liberties groups, which opposed reauthorizing the statute, set to expire this past April, without meaningful reforms. Indeed, there was much wrangling between reformists and intelligence hawks in Congress over Section 702’s reauthorization, with various versions of the bill competing for votes. The most hawkish version of Section 702 ultimately became law, with some of its biggest supporters peddling it as necessary to surveil pro-Palestine student protestors. These advocates included members of Congress, as well as a number of pro-Israel groups, like the ADL and the Jewish Federations of North America, which strongly opposed a key reform to Section 702 that would have added a warrant requirement to protect the information of U.S. citizens.
Thanks to an amendment made to the law, the new version of Section 702 could even make it easier for the government to compel universities to participate in state surveillance. Though the expansive scope of Section 702 already arguably covered universities, the amended law dramatically broadens the range of U.S. persons compelled to assist with Section 702 surveillance to include any “service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.” While many civil libertarians have complained that this definition potentially covers “any U.S. business that provides WiFi to their customers,” it could also include universities.
No Fly Lists and Deportation
Finally, various congressional proposals specifically target students and faculty for participating in pro-Palestine advocacy or other work. The first, an amendment introduced in early May to a pending bill, would place certain students and faculty on the government’s notorious No Fly List. Under this legislation, the Director of the FBI is required to place on the list students and faculty who have been subject to university disciplinary efforts relating either to “openly pledg[ing] support for, or espous[ing] allegiance or affiliation to” organizations designated as FTOs by the Secretary of State, or to “solicit[ing], command[ing], induc[ing], or otherwise endeavor[ing] to persuade another person to engage in a crime of violence against a Jewish person or the Jewish people because of their race of religion.”
The amendment’s implications become even more egregious when considered alongside the Antisemitism Awareness Act, another currently pending bill. This act requires the Department of Education to apply a definition of antisemitism that equates antisemitism with anti-Zionism and anti-Israel advocacy to departmental interpretations of Title VI of the Civil Rights Act. If this act passes—notwithstanding its clear First Amendment infirmities—universities fearful of Title VI claims may start to more vigorously discipline students and faculty engaging in pro-Palestine speech and activities. While it is unclear that a disciplinary proceeding for anti-Israel or pro-Palestine speech that violates the Antisemitism Awareness Act would necessarily trigger the No Fly List amendment, it could. If it did, the amendment would require a student or faculty member to be added to the No Fly List even if they were ultimately exonerated by their school’s disciplinary hearing.
Another congressional bill introduced in early May, titled Hamas Supporters Have No Home Here Act, would require, among other things, the deportation of foreign students who are charged with any criminal violation (for instance, criminal trespassing) related to their participation in “antisemitism rallies or demonstrations.” On its face, the bill does not endorse or reference a particular definition of antisemitism, though given its sponsors’ intentions its implementation would likely embrace the Antisemitism Awareness Act’s definition. This legislation joins a host of calls from politicians and others for foreign students to be deported under existing immigration laws for participating in pro-Palestine rallies since October 7.
The Impacts of Securitizing the University
This is hardly the first time pro-Palestinian advocates, including university students, have been smeared with accusations of supporting terrorism or being antisemitic. Nor is it the first time such accusations have been used to pass U.S. laws that explicitly or implicitly delegitimize the Palestinian cause. This is, however, the first time these baseless allegations have been deployed, en masse, in concerted fashion by a host of public and private actors in an attempt to effectively transform the university as a whole. If passed, these laws will upend how universities function, who they welcome, and how they teach their students and support their faculty.
Though universities are hardly the bastions of warmth and openness they often claim to be, their many shortcomings sit alongside many worthwhile values and ideals. These include the belief that the university is a place to challenge student biases and preconceived notions; to foster free and open debate about contentious topics in a respectful and sensitive manner; to support unfettered academic inquiry and the “life of the mind”; to facilitate opportunities for students to meet and learn from one another in formal and informal ways; and to encourage students, faculty, and staff to meaningfully contribute to improving university life.
All these values are threatened by the legislation discussed above. These bills are intended to dictate what can be said and taught at universities, the kinds of extracurricular activities available on campuses, as well as the sort of scholarship that can be pursued. They ensure that people with certain beliefs—in support of Palestine—will feel even more unwelcome and marginalized on university campuses than they already do. These bills also undermine any confidence in the campus environment as one where intellectual risks can be taken without punishment; where taboos can be challenged without censure; and where conversations, within or outside of the classroom, can and will be conducted in good faith without the threat of reprisal.
Amidst all this potential devastation, there is, however, a glimmer of hope. Unjust and immoral laws and policies that discriminate against a broad swath of persons tend to be met not with complacency but with political mobilization and civil disobedience. And this tendency has been on display in the mass resistance to repressive tactics that have already been used against the pro-Palestine movement over the last several months. As SJP chapters across the country have been targeted for their activism, Faculty for Justice in Palestine chapters have sprung up to support their efforts. As student protesters have created encampments that have been violently and brutally crushed by their universities, more and more students and faculty have shown up to support these efforts. Indeed, the groundswell in student encampments this spring was a direct response to Columbia University’s decision to bring NYPD onto its campus on April 18 to arrest its own students. Most recently, as universities have decided to cancel their main stage graduations to avoid displays of Palestine solidarity, students and faculty have convened their own “people’s graduations” that have centered the Palestinian cause.
If these developments are any indication, Congress’s legislative counter-insurgency will not just silence and scare, it will also embolden critiques and prompt continued dissent against universities maintaining relationships with Israeli institutions and investments in companies profiting from Israel’s genocide, occupation, and apartheid policies against the Palestinians—all of which are a central focus of the student protest movement.
These proposed and enacted congressional bills are also likely to strengthen the solidarity forged over the last few months across and within campuses. This sense of solidarity is a recurring theme of the student protest movement, particularly amongst those who have participated in or witnessed the encampments. Many have described them as places of community and kinship, inclusivity and kindness, where students experimented in self-governance and mutual support. These bonds—forged in the midst one of the most organized, bipartisan onslaughts against university students and higher education in generations—will only grow stronger as Congress ratchets up the repression through securitized approaches to dissent.
Ultimately, it would be naïve to underestimate just how dangerous the legislation discussed above is to the health of a free and open university. But it is also important to understand the forces that these efforts are responding to. They are responding to a mobilized faculty, staff, and student body—more mobilized than they have been in decades—that have a clear-eyed understanding of what they are fighting for. In responding to this mobilization with the blunt and repressive techniques of national security, proponents of these legislative tactics implicitly recognize that victory will not come on the plane of ideas, discussion, and debate. Force is the only way they can win.
Though the cost will be quite high, this tactic, which is ultimately the tactic of the weak, can be resisted. It will require a spirit of solidarity, mutual support, and unwavering commitment to higher moral and ethical principles. And it will need to hold fast in the face of a relentless onslaught coming from many different directions for a long time to come.
