McKay, Nicholas

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Conversations on Jesuit Higher EducationVolume 52 Article 15September 2017Law, Policy, and the Sanctuary CampusNicholas McKayFollow this and additional works at: http://epublications.marquette.edu/conversationsRecommended CitationMcKay, Nicholas (2017) "Law, Policy, and the Sanctuary Campus," Conversations on Jesuit Higher Education: Vol. 52 , Article 15.Available at: http://epublications.marquette.edu/conversations/vol52/iss1/1530 CONVERSATIONS ON JESUIT HIGHER EDUCATION                                                                                                                                          I do not know whether President Donald Trumpis familiar with the “frith stool,” a chair found insome pre-Norman churches in England uponwhich those seeking sanctuary were required tosit in order to establish a claim to protection.       I consider it unlikely that Mr. Trump knowsthe history of church sanctuary or that in me-dieval times this protection sometimes ex-tended beyond the churches to larger areasmarked by “sanctuary crosses,” some of whichmight still be seen in parts of England. Or thatthe concept of protection from pursuing gov-ernment agents or soldiers existed in the bibli-cal times of ancient Israel, in Greek temples,under controlled aspects of Roman law, and inChristian churches for centuries.       He will certainly know, or will so be ad-vised by his lawyers, that no legal right of sanc-tuary exists today in the United States andcannot be used as a defense to violating federalLaw, Policy,and theSanctuaryCampusBy John McKayThe frith stool at Beverley Minster in the U.K. dates back to Saxon times. Anyone wanting to claim sanctuary from the law would sit inthe chair. Photo courtesy of Jeremy Fletcher, former Vicar of Beverley Minster.1McKay: Law, Policy, and the Sanctuary CampusPublished by e-Publications@Marquette, 2017                                                                                                                                                                                                               31criminal laws, including the charge of “illegally har-boring an alien.” Whether our Christian values andIgnatian principles of care for persons compels us toanother direction is the subject of this essay.       This conflict between our long ecclesiastical tra-dition of sanctuary and relevant law and policy inthe United States lies at the heart of the current threatto undocumented persons, including students in ourJesuit universities. Reconciling the long history ofchurch sanctuary with the risk of loss of federalfunding, student loan eligibility, or criminal prose-cution will prove difficult and may challenge ourcommitment to Ignatian ideals. Indeed the very coreof our Catholic Jesuit tradition of education seemsthreatened by the specter of armed federal agents en-tering our universities and arresting students whoare under our care.       Should Jesuit universities join others who havedeclared themselves a “sanctuary campus” and chal-lenged the government by declaring their non-coop-eration with immigration authorities and support forundocumented students? No Current Law Prevents a Declaration of “Sanctuary Campus” for Jesuit UniversitiesFederal law or policy defines neither the term “sanc-tuary city” nor “sanctuary campus.” However, a uni-versity should proceed with due caution in examiningits moral obligation to support all of its students, es-pecially those who are undocumented, from unwar-ranted searches or seizures by the government.       It is important to note that the law treats pri-vate institutions, including religious colleges anduniversities, differently than state and local govern-ments. For the most part, private institutions andtheir leadership enjoy constitutional protections, in-cluding free speech and the Fourth Amendmentright to remain free in the absence of an arrest war-rant based upon probable cause. Private universitiesshould ignore the debate and threats made by theTrump administration against so-called “sanctuarycities” – this does not apply to them.       Current policy of U.S. Immigration and CustomsEnforcement (I.C.E.) in a memorandum dated Octo-ber 24, 2011, designates all schools, including col-leges and universities, as “sensitive locations.” Alsoincluded are “churches, synagogues, mosques orother institutions of worship.” Planned enforcementactions in these locations are discouraged and re-quire senior-level approvals unless a situation in-volves imminent risk of death, violence, harm tonational security, or terrorism. This guidance re-mains in effect today.       Entry upon the property of a private university re-quires the permission of the university, and in generalthis applies equally to law enforcement, including im-migration officials. Consequently, neither the univer-sity nor any of its employees are required to assistI.C.E. agents or other immigration or law enforcementofficials in the absence of a court-ordered warrant. Forthose wishing to protect all students while they are oncampus, federal immigration agents should politelybe told to leave the campus if their purpose is to seekinformation about or access to undocumented stu-dents. If a warrant signed by a judge has been lawfullyobtained, then failure to cooperate could subject uni-versity employees to criminal prosecution. Some maydetermine that the government action itself is immoraland unjust and might determine that non-violent op-position is justified. In either case, training and deepreflection are clearly called for in the event of stepped-up federal enforcement of immigration laws thatmany believe to be unjust and if applied to undocu-mented students would have a disastrous impact onuniversity communities.       Some argue that the mere declaration of a “sanc-tuary campus” might result in loss of federal grantfunds and student loans and in other sanctions.While this essay does not purport to give legal ad-vice – that is the role of university counsel – realthreats to federal funds based upon a declaration areremote at best. Undocumented students are not eli-gible for Pell Grants; even if the federal governmenthad the authority to cut grant funding it would ap-pear this avenue is unavailable. Absent new legisla-tion, and without very creative language inadministrative or executive orders, private universi-ties receiving direct or indirect federal fundingwould not face serious financial risk.2Conversations on Jesuit Higher Education, Vol. 52, Iss. 1 [2017], Art. 15http://epublications.marquette.edu/conversations/vol52/iss1/1532 CONVERSATIONS ON JESUIT HIGHER EDUCATION                                                                                                                                          Our Call to Serve the Poor,the Immigrant, the Sanctuary-Seeker       Our faith tradition calls us to “love the stranger,for you were once strangers in Egypt” (Deut 10:19)and exclaims, “I was a stranger and you made mewelcome” (Matt 25:37). Pope Francis, in direct re-sponse to the Syrian refugee crisis and PresidentTrump’s purported travel ban order, reminded usthat the need for “the peaceful integration of per-sons of various cultures is, in some way, a reflectionof its catholicity, since unity, which does not nullifyethnic and cultural diversity, constitutes a part of thelife of the Church.” He has urged Catholics world-wide to help instill a “rayof hope…in the eyes andhearts of refugees andthose who have beenforcibly displaced.”       These powerful calls,together with our Ignatianpledge of cura personalis, or care for the whole per-son, makes the issue of sanctuary on our campusesone that touches our Jesuit identity. While a univer-sity declaring itself a sanctuary confers no legal pro-tection, I would argue that Jesuit universities mustjoin the approximately 30 universities that havemade such declarations. Our students, especiallythose who are undocumented, live in fear of Presi-dent Trump and his pledge to end protections forcollege students. His campaign rhetoric of stepped-up enforcement against the millions of undocu-mented persons living, working, and raising familiesin this country, makes this threat all too real for them.       Declaring a Jesuit university a “sanctuary cam-pus” makes explicit our connection to the long history“If our church is not marked by caringfor the poor, the oppressed, the hungry,we are guilty of heresy.” - St. Ignatius of Loyola The Jesuits of Loyola University Chicago (particularly the younger ones!) showed oﬀ their musical and basketballprowess in anticipation of an important fundraising event to support a scholarship fund for undocumented stu-dents seeking to study at one of Loyola’s campuses in the Chicagoland area. Their eﬀorts are tied to the “JesuitJam,” a yearly collaboration with the university basketball teams to highlight the school’s Jesuit mission, encour-age support of Loyola’s teams, and support causes important to the campus community.https://youtu.be/GC_nKexdp-83McKay: Law, Policy, and the Sanctuary CampusPublished by e-Publications@Marquette, 2017                                                                                                                                                                                                               33From the AJCU:http://www.ajcunet.edu/press-re-leases-blog/2016/11/30/statement-of-ajcu-presidents-november-2016http://www.ajcunet.edu/press-re-leases-blog/2017/1/30/statements-from-jesuit-college-and-university-presidents-on-executive-orderFrom Regis University:http://www.regis.edu/News-Events-Media/News/2017/January/Presi-dents-Statement.aspxThree short statements that seem tocompletely avoid any legal entanglement:http://www.scranton.edu/news/arti-cles/2017/01/Refugee-statement-ban-Quinn.shtmlhttps://ww2.rockhurst.edu/news/01-30-2017/statement-rockhurst-univer-sity-president-rev-thomas-b-curran-sj-us-immigrationhttp://www.lemoyne.edu/News/News-Article/ArticleId/104This one is written by several leaderson campus at Marquette:https://today.marquette.edu/2017/01/a-message-from-leadership-to-the-marquette-community/And, this, from the University of SanFrancisco, is very detailed:http://register.usfca.edu/controls/email_marketing/admin/email_market-ing_email_viewer.aspx?sid=1307&eiid=16624&seiid=11410&usearchive=1&puid=83992b4f-3524-4187-b542-dceb0b448f86of religious protection from unjust arrest or govern-ment harassment. Fear of government scrutiny, lossof funding, or the approbation of government officialsshould never be more important than caring for ourstudents and opposing injustice against them. There-fore, Jesuit universities should be among the first toexplicitly declare for them what it means to be a cam-pus of sanctuary for its undocumented students.Toward a Declaration of‘Sanctuary Campus’ and theActions It RequiresA number of Jesuit universities and institutions haveissued statements in response to actions taken by theTrump administration, and many list actions theywill take to protect students. These statements appro-priately emphasize the desire of the university to op-erate within the strict confines of the law. Yet, nonedeclare themselves to be a “sanctuary campus.” Be-cause the term is undefined in law and policy, Jesuituniversities and institutions should take care to de-fine it carefully. This should be done in a way thatdoes not give governmental agencies an argumentthat the declaration in any way establishes cause tobelieve a crime has been or will be committed.        Jesuit universities should explicitly declarethemselves sanctuaries for their students, andshould (1) define sanctuary in the religious contextin which it was born, (2) declare that the universitywill comply only with lawful orders signed by ap-propriate judicial authorities directed against its un-documented students, (3) detail the affirmativeservices and resources available to students, includ-ing those who are undocumented, (4) engage intraining for university employees, faculty, and staffto understand both the limitations and lawful au-thority of governmental immigration and law en-forcement officials, and (5) refuse voluntarycooperation with immigration officials seeking in-formation or access to its undocumented studentsin the absence of a court order.       In these challenging days, Jesuit communitiesare called upon to renew their commitment to thevalues of the Gospel, to Catholic social teachings,and to the core of our Ignatian spirituality. Declaringour campuses to be sanctuaries for our students inthe face of threatened mass deportations is amongthe least of our duties, but will send a powerfulmessage of support when is most needed.John McKay is Professor from Practice at Seattle Univer-sity School of Law and a former United States Attorney.Heidi Barker, a member of the National Seminar on Jesuit Higher Education, has put together a collection of websitesfrom the AJCU and from some of the Jesuit schools addressing the issue of issue of protecting their students.4Conversations on Jesuit Higher Education, Vol. 52, Iss. 1 [2017], Art. 15http://epublications.marquette.edu/conversations/vol52/iss1/15

Law, Policy, and the Sanctuary Campus

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Law, Policy, and the Sanctuary Campus

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