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ICE Ruling and Universities’ Autonomy

photograph of Princeton University's campus

Educational groups across the country are releasing statements that denounce the ICE policy requiring international students to leave the US if their classes are fully online. These statements focus on the cruelty of it, the complexity and lack of clarity, and even the economic devastation.

Harvard and MIT are suing to block the rule claiming that it violates the Administrative Procedures Act which requires administrative agencies like ICE to offer a reasonable basis justifying the policy and give public notice to provide opportunity to comment on it.

But beyond these complaints there is another deeply pernicious aspect to this ruling. ICE’s policy represents a significant encroachment on universities’ autonomy to determine how best to educate their students. The federal government has made two false assumptions about education that no college likely accepts:

  1. Education at colleges only happens in the classroom
  2. When courses happen online, the students can be anywhere in the world and still get an education that is as effective.

Both of these are false. There is all sorts of learning that happens on a college campus outside of class time that might still happen face-to-face even when instruction takes place online. For example, professors might meet one-on-one outdoors with students and they might even prioritize meeting with international students who could face cultural or linguistic barriers. I, for instance, tend to hold extra office hours for students who might need extra assistance or guidance with respect to their coursework, and my international students are often the students who take me up on that.

Even if a student takes their classes online, there will likely be a wide-range of face-to-face activities that provide opportunity to meet an institution’s educational goals. Co-curricular activities could happen in socially-distanced settings. Students might be organized into smaller bubbles that could meet face-to-face for the purposes of study or group projects. Students might also join student clubs and organizations where genuine learning happens in safe, manageable settings.

Another part of the educational experience that ICE ignores is the value of studying in another country/cultural setting. Most liberal arts colleges boast on how big their study abroad programs are. Last year, DePauw ranked 4th among four-year baccalaureate institutions for affording its students the opportunity to study abroad. Why is this boastworthy? Because it is widely agreed that there is significant educational value in academic experiences in other environments (and that this value goes beyond what you learn in the classroom). That’s what international students come here for. A 21st-century liberal arts education basically requires that students learn about other countries and cultures, and international students see significant value in learning more about America and participating in that culture. Even without face-to-face instruction, students can still realize many of their educational goals by residing in America when they take their classes online.

The ICE decision is an affront to the autonomy and rights of educational institutions to determine what their learning goals are and what the best methods are at their disposal to deliver on their promise to help students achieve them. We should be appalled by the cruelty and harm of this ruling for international students. We should also be appalled at this assault on the freedom of institutions of higher education. ICE has no business deciding what constitutes genuine learning. That is a decision that should be left up to the institutions of learning.

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No Country for Indigenous Men?

close-up photograph of Australia on globe

What does it take to be a natural citizen of a country? Does a person only have to be born within the borders; do they need only to have some sort of ancestral connection to it; or is there some other criterion that a person must satisfy? The High Court of Australia is poised to decide the answer to these questions as far as it pertains to Australian citizenship. The relevant cases both involve people who were born outside of the country to an Aboriginal parent, and who relocated to Australia as children. However as neither man ever obtained Australian citizenship, and are in the country on visas, Australian immigration authorities want to subject them to deportation. Both men have been convicted of crimes for which Australian law allows the government to revoke immigration visas. Those defending the two men, Daniel Love and Brendon Thoms, argue that it is absurd to claim that any Aboriginal person could count as an immigrant who needs a visa in the first place.

The defense of the Aboriginal men depends on the idea that they have some sort of automatic—or nearly automatic—citizenship or at least resident status. (For brevity, we’ll just use ‘citizenship’ to refer to both statuses.) Automatic citizenship is often referred to as birthright citizenship. To have birthright citizenship is to count as a citizen of a country simply by being born. But there are two ways to think of when someone has such a birthright. The first is jus soli (literally, “law of the soil”), which confers citizenship on any person born within the territorial borders of a country. This is the idea of birthright citizenship at issue in immigration debates in the United States, and which President Donald Trump infamously said that he could revoke. However given that neither Love nor Thoms were born in Australia, this can’t be the sense of birthright citizenship at issue.

The second conception of birthright citizenship is jus sanguinis (literally, “law of blood”), which confers citizenship on any person born to one or more parents who were themselves citizens. Jus sanguinis is not commonly referred to as birthright citizenship, but it is helpful and appropriate to think of it as such because it is a mechanism of conferring citizenship status to someone automatically at birth. Moreover this is the mechanism by which it is possible to claim that Love and Thoms have birthright citizenship. Both of them have one parent who is an Australian Aboriginal.

However, Australian law no longer has any birthright citizenship mechanisms. Australian law does not contain a simple jus soli provision anymore, as of the 1986 Australian Citizenship Amendment Act. Children automatically receive citizenship when born within Australian territorial borders only if born to at least one parent who themselves had Australian citizenship or resident status at the time of the child’s birth. Neither does Australian law provide for automatic citizenship by a jus sanguinis mechanism. Instead it is allowed for the parents of a child born outside of Australian borders to apply for the child’s citizenship, provided that the parents are themselves Australian citizens at the time of the child’s birth. Neither Love nor Thoms, nor their respective parents, ever applied for citizenship.

In lieu of a mechanism of birthright citizenship, Love’s and Thom’s representatives are appealing to the idea that as Aboriginal people the two men have a significant connection to the Australian land that confers on them some sort of significant legal standing. This defense invokes an alternative to birthright citizenship called jus nexi (literally, “law of linkage”), which confers citizenship on any person who has an immediate stake in the laws and operations of a country. Jus nexi does not function automatically but confers citizenship on the basis on the contingent fact of a person’s being a “stakeholder” in a country. In the case of Love and Thoms it is specifically their Aboriginal heritage that is taken to make them stakeholders. (This makes the issue a bit confusing, but in general jus nexi is not an automatic mechanism: it does not confer citizenship on the basis of being born to certain parents, or in a certain place.)

Immigration is an increasingly complex problem for governments as refugees and those seeking new opportunities move from one country to another. The social tension and financial pressure that attends such migration has drawn anti-migration reactions not only from people, but from the governments themselves. (The permanent furor over immigration in the United States attests to that.) The invention of jus nexi is one way in which theorists have tried to update the conceptions of the mechanics of citizenship in response to increased migration, and to avoid travesties like the one Australia’s government aims to perpetrate.

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Patriotism Run Awry

With the 2016 presidential election looming, we’re inundated with a number of messages from both major political parties. Many of these messages invoke patriotism as a reason to support one particular party or candidate over another. Republican candidate Ted Cruz, for instance, refers to “faith, family, patriotism” as fundamentally conservative values. Lest one think that only Republicans appeal to patriotism, in a Veterans’ Day speech, Democratic candidate Bernie Sanders said: “If patriotism means anything, it means that we do not turn our backs on those who defended us, on those who were prepared to give their all.” It’s no surprise that both the DNC and the RNC have adopted the colors of the American flag for their logos and websites. After all, who would object to patriotism—love for and pride in one’s country?

I think it’s important to keep in mind that while patriotism can be a political virtue, it can also go wrong. One need not conjure up images of Nazi rallies in the 1940s or pro-Taliban demonstrations in Afghanistan to see instances of patriotism that many in our current political climate would take to be problematic. Our own political history should teach us that we ought to be cautious about patriotism given the opportunity for it to run awry. As just one of many instances, consider how claims of patriotism have been used in the US to justify discrimination against individuals with disabilities, particularly disabled immigrants. At numerous times in our nation’s history, immigration law has been used to keep out individuals that we think would ‘pollute’ or ‘dilute’ our country. Loving our country, it was thought, requires us to protect it. And protecting it requires us to keep the wrong kind of people out. The ‘Red Scare’ following World War I led to tightened controls on immigration as a way of keeping out those who had different political views.

But it’s not just suspicions of anarchism or socialism that led to restrictions on immigration. The US has a long history of using disability to the same end. The Immigration Acts of 1882 and 1924, for example, allowed for government officials to restrict the immigration of those who were either disabled or even likely to become so. In the early 20th century, immigration officials were told that “any mental abnormality whatever … justifies the statement that the alien is mentally defective” (Nielsen, 103), a judgment that could be used to prevent an individual’s immigration into the US. (Perhaps not surprisingly, such laws resulted in a higher deportation rate for individuals from Asia than from Europe.) These, and other laws, were used to exclude people from immigrating or to push them underground once they were in the country. In the late 19th and first few decades of the 20th centuries, numerous cities—from San Francisco to Chicago—enacted laws that prohibited those with disabilities or other ‘mutilated or deformed bodies’ from being in public.

The use of ‘disability’ as a way of marginalizing or discriminating against individuals in US history does not just apply to the disabled. It was also used to justify slavery in the 19th century. For instance, Samuel Cartwright, a medical doctor and proponent of scientific racism, argued that “blacks’ physical and mental defects made it impossible for them to survive without white supervision and care” (Nielsen, 57). In the 1870s, influential educational leaders argued that attempting to educate women led to their becoming disabled. And as late as the 1940s, the claim that Native Americans were particularly prone to disability was used to justify failing to extend full rights to indigenous population.

Finally, the US has a long history of using appeals to patriotism as a reason to forcibly sterilize the disabled. Supreme Court Justice Oliver Wendell Holmes’ claim that in the service of the “public welfare … three generations of imbeciles is enough” defended the constitutionality of such a practice, which is not only legal but still practiced in numerous states. The reason for such sterilization, presumably, is for the good of the American people.

So, this coming election, feel free to be patriotic. But make sure that the vision of our country that you’re supporting and working to enact is one that is worthy of your love and pride. For not all patriotism is worth it.

—
Quotations from Kim E. Nielsen’s A Disability History of the United States (Boston: Beacon Press, 2012). For a discussion of how eugenics influenced US perceptions of disability and contributed to immigration restrictions, see Daniel J. Kelves’ In the Name of Eugenics (Cambridge, MA: Harvard University Press: 1985).