In a move that would make even Senator McCarthy blush, the Trump administration is threatening to pull federal funding from a Middle East Studies program for failing to toe the government’s line on Islam and Muslims.

Last week, Betsy DeVos’s Department of Education sent a letter to administrators of the Duke-UNC Consortium for Middle East Studies — a jointly run program that receives federal funding under Title VI of the Higher Education Act — warning that the department would cut the Consortium’s federal aid unless the Consortium submits plans to remake its Middle East studies program and curriculum to the department’s satisfaction. Among other complaints, the department demanded that the Consortium temper its portrayal of “the positive aspects” of Islam and cease “advancing ideological priorities.”

The department’s attempt to inject the Trump administration’s long pattern of anti-Muslim bigotry and discrimination into higher education represents a significant threat to academic freedom at colleges and universities like UNC and Duke. In response, the ACLU sent a letter today urging Secretary DeVos to end the department’s investigation into the Consortium and to prevent future attempts to politicize federal funding for higher education. We also filed a Freedom of Information Act request for records related to the department’s decision to investigate the Consortium as well as any similar investigations the department may have undertaken at other educational institutions that receive Title VI funding.

The origins of the Education Department’s investigation are as troubling as the letter itself. In June, Secretary DeVos ordered an inquiry into whether the Duke-UNC Consortium misused its Title VI funds to sponsor a conference on the Gaza conflict, after a member of Congress accused the conference of “radical anti-Israel bias.” As it turned out, less than $200 of federal funds were spent on the event. When this allegation didn’t stick, it appears that the department — not content to let the matter rest — scoured the Consortium’s programming to ferret out other objectionable viewpoints and purported deficiencies.

The department identifies a number of ways in which the Consortium supposedly violates the Title VI funding requirements, not only complaining about the curriculum’s inclusion of “positive aspects of Islam” but also accusing the Consortium of inappropriately “advancing ideological priorities.” As we explain in our letter to Secretary DeVos, however, it is the Department of Education — not the Consortium — that inappropriately attempts to advance ideological priorities

Although the government may attach certain conditions to the use of federal funding — such as compliance with statutory and constitutional requirements — the proud boast of our universities is that they are free from the ideological micromanagement of the government censor. Title VI does not, and cannot, authorize the government to require federal funding recipients to de-emphasize the “positive aspects of Islam” to the Department’s satisfaction. The Department’s assumption of such authority threatens core constitutional principles protecting freedom of speech and freedom of religion. 

This ham-fisted attempt to wield funding authority over the Consortium’s academic programming illustrates yet again the Trump Administration’s deep-seated anti-Muslim bias. It should also be alarming to anyone who cares about academic freedom, a bedrock principle of higher education.

Higher education institutions throughout the country are now on false notice that federal funding requires conformity to the Trump administration’s ideological standards. The Department’s ultimatum issued to the Consortium will no doubt have a chilling effect on these institutions as they determine the curricular content of federally funded programming. That’s why we’re asking Secretary DeVos to terminate the Department’s investigation into the Duke-UNC Consortium and to take affirmative measures to prevent similar politicized investigations in the future.

Colleges and universities are under no obligation to further the administration’s anti-Muslim agenda. The government has a constitutional obligation to respect that.

Nicola Morrow, Paralegal, ACLU Speech, Privacy, and Technology Project
& Heather L. Weaver, Senior Staff Attorney, ACLU Program on Freedom of Religion and Belief

In response to the increase in white supremacist violence, Congress has been holding hearings — including one today — on the urgent need to address it. But, rather than getting to the bottom of why our law enforcement agencies have failed to address white supremacist violence, some lawmakers are rushing to give law enforcement agencies harmful additional powers and creating new crimes. That approach ignores the way power, racism, and national security laws work in America. It will harm the communities of color that white supremacist violence targets — and undermine the constitutional rights that protect all of us.

As we made clear to Congress, it needs to investigate why law enforcement agencies have repeatedly failed to focus resources on white supremacist violence — and hold them accountable for this failure. It needs to ask why the FBI has not even publicly reported on domestic terrorism and white supremacist violence since 2005. It needs to clarify why, earlier this year, the FBI reclassified its tracking of white supremacist violence investigations, hiding them in a broader category of “racially-motivated violent extremism.” And Congress needs to ask whether agencies have the proper training to address white supremacist violence effectively and consistent with the Constitution. Without first getting the answers to these questions, Congress — and the public — cannot know what needs fixing here.

But one fact is clear: Law enforcement agencies already have all the authority they need to investigate, prosecute, and punish white supremacist violence effectively. Congress has passed numerous and sometimes overlapping laws that cover white supremacist violence, credible and direct threats of violence, conspiracies, and attempts. It has enacted more than 50 federal domestic terrorism-related crimes, and a related prohibition on “material support” for domestic terrorism. Congress has also provided an entire framework of hate crimes that law enforcement can use for violence targeting marginalized communities. The FBI has also asserted expansive powers to investigate “domestic terrorism” under the Patriot Act.

Indeed, we have significant concerns about how the FBI and other law enforcement agencies have already used these authorities, particularly against communities of color, in ways that undermine and violate equal protection, due process, and First Amendment rights.  It is Black civil rights activists, Muslim, Arab, Middle Eastern, and South Asian communities, animal and environmental rights activists, or others that the government views as having “unpopular” or controversial beliefs who are disproportionately harmed.

For instance, the FBI has collected, analyzed, and “mapped” racial and ethnic demographic information and the location of ethnic-oriented businesses and facilities based on crude stereotypes. It has relied on domestic terrorism authorities to spy on Muslim communities, including by infiltrating their places of worship. It is targeting individuals engaged in immigration advocacy, including border groups’ activities and family separation protests. Echoing its abuses in the civil rights era, the FBI has categorized Black people as threats and has recently run a new program, titled “IRON FIST,” to spy on and investigate Black activists who call out white supremacy, including through undercover agents.

These rights-violating and discriminatory harms flow from the expansive nature of existing domestic terrorism authorities and a lack of safeguards. Under the Patriot Act’s vague, overbroad, and malleable definition of “domestic terrorism” the FBI asserts the power to investigate individuals even when it doesn’t have a factual basis for suspicion, and often for engaging in First Amendment-protected activities. And it claims it can do so using intrusive techniques such as physical surveillance, suspicionless interviews, informants, and searches of law enforcement and commercial databases.

The Department of Justice has eliminated safeguards that were put in place in the 1970s to guard against the abusive surveillance and investigation practices that were a defining feature of the FBI’s response to the civil rights and Vietnam-era anti-war movements. The Departments of Justice and Homeland Security acknowledge that bias-based profiling is unfair, ineffective, and harmful. Yet, they have permitted its use for national security—terrorism—investigations and at U.S. borders, over the objections of communities of color, and civil and human rights organizations.

Despite these facts, some members of Congress and former law enforcement officials insist on new and unnecessary domestic terrorism authorities and crimes, arguing that oversight alone will cure problems. But that hasn’t proven true; neither in the last 18 years, nor at any time before that. Racial disparities in the criminal justice system are one of the most severe forms of discrimination against people of color. New domestic terrorism-related crimes and penalties would worsen the over-criminalization of Black and Brown communities and incorporate more abusive powers into a discriminatory criminal justice system.

Congress can make our communities safer, but that requires protecting the rights of the communities that white supremacist perpetrators attack, and reforming — not doubling down on — failed strategies.

Hina Shamsi, Director, ACLU National Security Project

It is common for nations where mass atrocities have taken place to engage in the process of reparation and repair. This process happened in Germany after the Holocaust, South Africa after apartheid, and here in the United States, forty years after the internment of Japanese-Americans during World War II. As a result,  international human rights bodies have sought to lend their expertise to the process, often by holding hearings and publishing international guidelines on the steps necessary to effectively administer a program for reparations.

Now is time for those same human rights bodies to add their expertise to the ongoing conversation around reparations for descendants of African slaves in the United States. That’s the fundamental assumption that guided our decision to request today’s hearing before the Inter-American Commission on Human Rights and other forms of structural racial discrimination, in the United States.

The Inter-American Commission on Human Rights, founded in 1959 by nations across the Western Hemisphere, has specifically been involved in such work, holding hearings and publishing international guidelines on the steps necessary to effectively administer a program for reparations. It did so after mass human rights violations in Columbia and Chile, leading to both countries’ implementation of these initiatives. In March, the commission released  “Police Violence Against Afro-descendants in the United States,” a report that recommended reparations here in the United States to address the structure of the racial discrimination that underlies our current system of policing.

Toward the end of the event launching that report at Howard Law School, vice president of the commission Margarette McCauley, addressed the audience, reminding us that the commission has a long history of recommending reparations for severe violations of human rights. In fact, reparations programs recommended by the commission often call for far more than simply eliminating the consequences of human rights violations. Often, the recommendations emphasize meaningful restitution, rehabilitation and compensation. This means restoring community cohesion and improving the social circumstances of affected communities.

That commission suggested that the United States respond to the crisis elevated by the Black Lives Matter movement by “undertaking studies with the goal of creating guidelines for the reparation of historic and structural discrimination” and “provide appropriate reparation to those affected by the racially disparate impact of federal, state, and local laws and policies.” We should not have been surprised—the United Nations Working Group of Experts on People of African Descent issued a similar recommendation in 2016.

Closer to home, Congresswoman Sheila Jackson Lee’s (D-Texas) proposal for H.R 40 would bring the U.S. in line with both international law and practice in the issuance of reparations for human rights violations. The international human rights community has taken the position that reparations are the right remedy for racial injustice in the United States. It’s time that our country recognizes that.

By approaching the reparations debate using a human rights lens, we sidestep the limited vision of those with shortsighted domestic imaginations. For example, Senate Majority Leader Mitch McConnell (R-Ky.) recently complained that slavery was too long ago and that people alive today are not responsible for slavery.

A human rights lens shows that McConnell’s arguments are far too constricted, both in defining the issues and in considering solutions. No international body has suggested that we limit reparations to the question of enslavement. Indeed, while the Inter-American Commission focused on police violence, others have focused on Jim Crow, lynching, segregation, and other methods of racial terror that people alive today have and continue to experience. These questions have not proved to be insurmountable in other countries and are not unconquerable here in the United States.

Take Canada, for instance. The racist practice of removing indigenous Canadian children from their families and placing them in schools that prohibited their native languages and cultural practices began in the 19th century. In 1991, the Canadian government established a special commission designed to explore the relationship between aboriginal peoples and the government.  Based on that commission’s recommendations and in conjunction with work done by the United Nations and other human rights advocates, the government issued an apology and, as of 2016, has provided approximately $2 billion federal dollars for a truth and reconciliation commission, as well as financial compensation for survivors under the Indian Residential Schools Settlement Agreement.

Our problems and their solutions are more similar than one would think. One public school reform group found that there is presently a $23 billion gap in funding between white and nonwhite school districts. A reparations fund could be used to close that gap and help to end the school-to-prison pipeline in America’s public schools.

The upcoming IACHR hearing offers opportunities to learn about additional comparative examples of reparations efforts. We should use the information gleaned from these hearings to inform the current domestic debate on how to remedy our country’s history of racial injustice.

Justin Hansford, Executive Director of the Thurgood Marshall Civil Rights Center, Howard University School of Law