Katrina Feldkamp is assistant counsel at the NAACP Legal Defense and Education Fund. Her work focuses on education advocacy. On March 29th, she spoke to us over zoom, about Trump's attacks on academic freedom. She explains that while some universities have been capitulating to the Trump administration, students and alumni must pressure their academic institutions to fight back. In this interview, she discusses some of the tools students can use to defend themselves in the face of disciplinary actions. She also talks to us about the landscape of First amendment law with respect to public and private universities.
This interview has been edited for length and clarity.
HIRA AHMED
Can you talk about the extent to which the First Amendment is protected on college campuses? And specifically, if there's a distinction between protections in public universities versus private universities?
KATRINA FELDKAMP
There is an important distinction between how that right operates on public and private college campuses. Private college campuses are not directly bound by the First Amendment. But that doesn't mean that there aren’t other ways of protecting student speech. Many universities bill themselves as leaders in free thought and expression and as spaces that foster a marketplace of ideas. Ultimately that is what allows them to bring in student tuition dollars, competitive faculty, and really generate the sort of rigorous academic ideas that further their missions. Attacks on protest and complicity with government censorship run directly afoul of those principles and undermine them.
But it's not just about values. It's also about legal restrictions that bind private universities, particularly those that accept federal dollars. So, for example, a university cannot censor or discipline students of a particular race, ethnicity, national origin, or students who are associated with a particular identity because of their appearance, their conduct, or their relationships with people of that identity in ways that it has not censored or disciplined similarly situated students of other identities.
It also can't single out students of a particular identity for harsher punishment, or by deploying new sanctions that it has not used in the past. Universities that do this, including by targeting Palestinian and Muslim students and students associated with those identities, may violate Title VI of the Civil Rights Act of 1964, and students have recourse to challenge that discrimination, including through federal lawsuits.
In addition, many universities have their own student conduct policies that identify protections for student speech and academic freedom in states like New York. If universities have those policies, they have to substantially adhere to their own rules and guidelines when they're making a disciplinary determination. They can't impose punishments that are so disproportionate that they shock one's sense of fairness, and they cannot take steps in their discipline process that substantially deviate from what is in their own policies.
If they don't comply with those limitations, their disciplinary determinations against students can be overturned by state courts, but those are really high bars. They have been successfully met before, but they are not easy to meet.
In public university settings, First Amendment protections are much more robust. Public universities are legally bound to respect the First Amendment rights of students in the classroom, in non-curricular activities and on campus. And in different ways, they're also bound to respect the First Amendment rights of nonstudents who enter their campus. If a university is providing, for example, student groups with funds, access to campus space, or the ability to distribute information to the student body, the university can't withhold those rights and resources to particular student groups just because they support the rights of Palestinians, or because they advocate for some other viewpoint that the university disagrees with.
It also means that students have the right to engage in protest and expressive conduct, including engaging in speech and wearing particular clothing.
The First Amendment has some limitations in the university setting—universities are permitted to set reasonable restrictions on the time and place and ways that students can engage in speech as long as those restrictions don't discriminate as to the viewpoint that students are expressing.
Universities can also limit student speech to comply with the obligation to intervene in targeted harassment that creates the sort of hostile environment for students of protected identities that is unlawful under federal civil rights laws. But that's not what we're seeing happen. Universities, including public universities, are overstepping these boundaries to target Palestinian protesters and pro-Palestinian protesters who are Muslim, South Asian, Black and Jewish. Among others.
Universities have deployed novel and significant sanctions. They've called in law enforcement, and in some instances they've deployed alarming amounts of physical and militarized force to respond to student protests. We've seen things like beanbag rounds, tear gas and pepper spray across the country. And we've seen a lot of alarming discussions and accusations that those responses were necessary because student protests were violent. I think it's important to point out here that the evidence just does not bear that out.
For the overwhelming majority of campus protests during the 2023-24 school year 95 percent [of the time] there were no reports of violent or destructive activity, much less reports that could ever be construed to justify the type of violent responses we were seeing from universities and law enforcement.
But despite that, in over 200 instances during just that academic year, universities made the choice to deploy law enforcement. And that's because even though universities have the right to protect students and protect their campuses, this is not about campus safety.
This is about deploying an overwhelming response in order to silence and deter political speech that universities or the government don't agree with, including by singling out student leaders who organize that activity and support and empower other students.
HIRA AHMED
Can you talk about the extent to which universities have been cooperating with the federal government to persecute their own students?
KATRINA FELDKAMP
Disturbingly, some universities may be cooperating with requests from the federal government to turn over student records, including records that are actually protected from disclosure by federal law. Mahmoud Khalil, and several other Columbia students recently sued to prevent the university from producing student disciplinary records in response to a letter request from the House of Representatives Committee on Education and the Workforce.
Universities are prohibited by federal law from disclosing students’ educational records—that includes disciplinary records—to any outside entity, including government officials, unless they have your consent, or unless they are subject to a warrant or judicial order.
This protection does have a few exceptions. It doesn't shield documents that are created by campus safety departments, or what's called “law enforcement units.” It also doesn't shield what's called “directory information” like students’ names, contact information, degrees or official participation in university activities.
But universities do have to draw a clear line between disciplinary records—including those that document students’ involvement in protests, buildings or spaces they occupied—and law enforcement records. I think it's really important at this moment that students and faculty and alumni call on universities to be transparent about how they're drawing that line between and whether they're actually complying with their requirement to protect student records from disclosure.
HIRA AHMED
What rights can students avail themselves of who have yet to be disciplined by universities?
KATRINA FELDKAMP
We've seen students be particularly effective when they're coordinating and sharing information with one another. So learn the history of protest on your campus, and how the university responded to that in the past, whether through actions to suppress it in real time or post hoc discipline.
If your university was not responding to campus protests in the past this way, particularly campus protests on other topics, that is something that you can use to challenge responses now as being targeted on the basis of identity or viewpoint.
We encourage students to gather information about those types of patterns so that they can be prepared to assert that in their individual engagement with the university, or in a larger [legal] challenge. We also encourage students to educate themselves about their schools’ disciplinary and conduct policies and what protections they're entitled to under those policies, especially because for many universities those policies aren't always in one single place—get to know the wide range of speech policies, the protections they're entitled to when going into a conduct conference, and other measures in student handbooks that may entitle them to use certain university spaces.
In addition, we're encouraging students to really put pressure on their universities to be transparent and pushing for a commitment from the university that it will not disclose even those records that it is able to disclose unless it is subject to a judicial warrant or a court order.
And finally, because universities are bound to substantially comply with their own procedures when they do engage in student discipline, this is a critical moment for students to begin pushing universities to adopt student conduct policies and discipline practices that more meaningfully protect student speech and protect against arbitrary discipline. That means reducing the amount of discretion available to universities, to dole out sanctions in response to student protest, because right now many university policies afford a wide range of discretion where university officials can do anything from issuing you a warning to denying you total access to campus. So the more protection students can advocate for now, the better they'll be able to avail themselves of those protections.
HIRA AHMED
Can you talk briefly about what the recourse or course of action is for students who have already been expelled or warned by their universities?
KATRINA FELDKAMP
In addition to protections for speech that exist for public universities, every university has to have good cause and follow due process when they expel a student, or issue some other harsh sanction against a student. As we discussed before, proving these were violated isn’t always an easy bar to meet. But the more that we avail ourselves of these rights, the stronger they become.
In states across the country there have been cases where students challenged expulsions or the revocation of degrees after the fact, and in those cases courts scrutinized whether the school acted with good cause, including by looking at the school's own policies to see if those policies supported that expulsion or revocation of degree, and also whether they provided the student due process. That means that the student must have an opportunity to understand the charges against them, present evidence, and have the opportunity to contest those charges, and that they be given an adequate amount of time to go through that process. If those requirements are not met, a student may be able to successfully challenge the expulsion or the revocation of a degree after the fact in state court.
HIRA AHMED
Are there any legal bases to challenge the university codes of conduct? I’m thinking of policies that have recently been implemented by universities to punish students and restrict speech.
KATRINA FELDKAMP
Absolutely. Students in public universities can challenge these policies if they infringe upon their right to free speech, and those challenges can be mounted in state court and in federal court, and sometimes under state law through local and state human rights commissions. The Education Department's Office of Civil Rights is not as viable of an option as it previously was for students in public and private universities.
If the university is disciplining and censoring students in ways that it has not targeted students in the past, including by relying on these new code of conduct policies, that is something that can be challenged under Title VI of the Civil Rights Act. If they are relying on Title VI to justify the discipline of student protestors, their interpretation of Title VI has to be consistent with law. Some of these new code of conduct policies rely on interpretations of Title VI and anti-discrimination law that are just not borne out by past cases and precedent. For example, past education guidance and case law is clear that speech that is critical of a country or of a country's actions, or of a particular political ideology, does not, on its own, violate Title VI, or constitute discrimination and violation of law that a university is bound to prevent. So if a university is relying on the idea that that type of speech violates Title VI, or constitutes discrimination on the basis of a protected identity, and they are using that interpretation to target students, particularly students of a particular identity for harsher punishment, that targeting itself actually violates anti-discrimination law.
HIRA AHMED
Can you explain briefly what Title VI is for folks who might not be familiar with it?
KATRINA FELDKAMP
Title VI is one of our most important civil rights laws. Title VI of the Civil Rights Act protects students in any school setting that receives federal funds, so that includes K through 12 and universities. It says that those schools cannot engage in discrimination on the basis of race, color, or national origin in any programs or activities. It also means that universities have to intervene if students are being subject to the type of discrimination that can interfere with their ability to learn. So to the extent we are seeing Palestinian students, Muslim students, or students of other identities, including Black students standing in solidarity with these students being targeted by other students on campus or by faculty on campus, that harassment may run afoul of Title VI and universities are bound to intervene.
HIRA AHMED
You've done extensive work on the school to prison pipeline and I was curious about how our larger attitudes as a society about the role of law enforcement in schools is playing out in this particular context.
KATRINA FELDKAMP
I think this moment of campus protest says a lot about where we are with our relationship to law enforcement in schools. Even though we have First Amendment protections on public university campuses, and even in K to 12 schools, and even though this country has a strong tradition of campus protest, we don't really have strong laws or policies that protect students from law enforcement intervention.
Many universities and a lot of K to 12 school districts have agreements with local law enforcement and with private security companies that give those officers a lot of discretion to intervene on campus to surveil students. And those agreements aren't available to the public. In many instances they're not even available to the students that are affected by them, much less available to be scrutinized or subject to public comment. That puts our students in great danger.
In the last decade we saw a really incredible push for law enforcement to be removed from K to 12 schools and college campuses, and that had successes in a lot of places. We saw universities and school districts making the decision to completely remove law enforcement from their campuses so that they could protect their students’ ability to learn. And, more importantly, we saw more and more people come to understand that police have no place in the learning environment, and that, in fact, policing is unsuccessful in reducing violence, because that's not really what it is intended to do.
But in the past few years, especially in this moment, despite the fact that many still support removing police from learning environments, we've seen renewed calls for increased law enforcement, presence and intervention [on campus]. And the rise of campus protests that are protected and that are justified have been the basis for a lot of these calls. For example, Columbia recently announced that it will be hiring 36 new campus security officers that are specifically trained to respond to protests. To me that is not about campus safety.
This [police] presence doesn't promote safety. It doesn't help students learn. It doesn't help students express themselves. It actually just creates corrosive environments where students are surveilled and criminalized, and we know it harms them in very real ways. Studies have made very clear that when students are exposed to law enforcement on such a regular basis they suffer impacts to their physical well-being, their mental health, and their ability to learn. Their educational opportunities drop off and they are less likely to engage in other learning opportunities or protected speech activities. And that's exactly what we've seen play out in campus protests over the last year and a half.
Students have made the brave decision to speak out and engage in the type of speech that is supposed to be protected and central to this country's First Amendment values. But in response to that they've been forced to endure violence, and they have been continuously surveilled and targeted as a result.
HIRA AHMED
We've seen the pressure the Trump administration has put on universities, particularly under the threat of pulling federal funds. What are some other sources of influence on the decision-making of universities at this time?
KATRINA FELDKAMP
In addition to the threats from the federal government right now to pull funds, we're also seeing threats of invasive investigations by the federal government and reviews of records. We're seeing universities really tighten in response to those threats and sometimes make public statements that they will cooperate [with the federal government]. We're also seeing threats or cuts to research grants that universities rely on for critical funding and to attract competitive faculty. That’s having an impact on the risks that universities are willing to take right now.
In addition, we are seeing outside stakeholders influence university boards of trustees, and that is especially concerning because those trustees are not subject to the same amount of transparency and access to students as university administrators. We have heard disturbing reports, for example, of trustees pushing for harsh discipline of students involved in protests because they've received outside pressure to ask for that discipline, and in some instances getting involved in individual student disciplinary determinations.
But the pressure isn't just on universities to crack down on student protest. There are also important pressure points from faculty, students, alumni and members of the community who are resisting university attacks on free speech. We need to amplify those as well.
Some of those pressure points are really concrete. Things like decreases in admissions and applications, current students literally reaching out to prospective students and encouraging them to withdraw their applications, and international students, who are often a source of greater tuition dollars for many universities, deciding not to come.
We're also seeing a lot of pressure from faculty to protect academic freedom. Some even going so far as to leave universities because they do not think the environment is conducive to the type of scholarship they want to engage in. That really is the lifeblood of a university, whether there are faculty and students who can engage in the type of scholarship and discourse that the university can be proud of. So without those two groups, and with competitive people from those groups leaving, universities are going to have to be held accountable.
HIRA AHMED
You talked about this briefly, but as alums of colleges and other institutions, what kind of power do we have to push back against these repressive measures?
KATRINA FELDKAMP
There are so many ways that alumni can apply pressure to universities.
And those strategies should be done in collaboration with students and faculty who are there now. We can engage in public outreach efforts to universities—administrators and trustees—to call out these attacks on speech and urge universities to safeguard students’ speech rights, including by adopting more robust policies that protect those rights.
We can also withhold donations and instead target our alumni donation dollars to support student organizations and protest efforts. We can support students with information gathering and organizing. [We can] share the history of past protest advocacy that we saw when we were attending those universities, especially if that activity didn't engage in the type of sanctions students are being subject to now. [That] can directly empower students to challenge the disparate response that they're seeing from their universities.
It's so important that alumni, faculty, and outside community members intervene to protect student rights, because at the end of the day, this infringement we're seeing on campus protests places all of our First Amendment rights under attack. Right now universities and government officials are attacking students who speak out in support of the Palestinian cause, but we have also seen in the last two months government attacks on efforts against anti-Black racism and broader attempts to advance racial justice, attacks on the rights of queer students and immigrant students. So we have to ask ourselves, if we stand by and allow universities to attack students’ rights to free speech, what protest rights will be left for us?
HIRA AHMED
The Department of Education's Office of Civil Rights sent a notice to about 60 universities, basically warning them that they are, or will be under investigation if they don't cooperate with the Trump administration's requests. What do you think we can expect in terms of how other universities respond to this administration?
KATRINA FELDKAMP
In addition to the letter from the Office of Civil Rights, the Department of Justice identified a small number of universities for really robust investigations. And these letters, these investigations, the threats of terminations of funds, the actual terminations of funds, these are all intended to strike fear in university officials and to get them to capitulate. And that is not just targeted at the universities that have been specifically identified.
When the administration goes after universities in such a public way, the effect and the goal is to have other universities around the country look at what's happening and self-censor to avoid this type of scrutiny. That includes removing the types of programs that we know actually make universities safer spaces for students that have been historically excluded from them. This is going to significantly chill student speech, especially by non-citizen students. And we are already seeing that non-citizen students, students who have been engaged in organizing over the past year and a half, are in some instances choosing to step back so that they can avoid being targeted by their universities or by government officials. But we are also seeing a lot of students who are continuing to fight back, and that is commendable. It is brave, and it is important.
We really need universities to do the same thing. We need universities to stand up and say, we will not capitulate in the face of these investigations and threats. We will fight back. We will assert our rights, and that is likely going to require advocacy from students, faculty and alumni to push the universities to do that.
We really have to commend the students who have been engaged in such visible advocacy, to push the universities, to stand up to the current administration, to protect their speech and to demand that the universities remove harmful programs and harmful contracts that are not consistent with university values. Those students are joining generations of students before them, and a long tradition of campus protest, activity, and we have to support them in encouraging universities to fight back.
