No, @circuitrider, the point is that the college doesn’t have the right at issue. The individual target does.
It’s a moot point. A search warrant would almost certainly be directed at the college itself as well as the individual “target” and it would be foolish for a law enforcement official to attempt an arrest without one of those, too. Moreover, I don’t think it is so clear that the college is without rights as to the arrest itself; the courts certainly recognize the concept of in loco parentis and when you think about it, the optics of trying to effectuate the arrest a minor without first notifying their parent or guardian would be sketchy at best.
Most college students are not minors as in 18+. I doubt that any in loco parentis rules overrule public laws. They can go beyond them and most do–the few that still exist.
@circuitrider: Law enforcement arrest minors all the time without first notifying the parent. In fact, I can’t think of a single time I’ve ever heard of them doing so. Most college students are over the age of majority anyways.
Further, 4th amendment rights are personal. I don’t see how the college could possibly assert them on behalf of the student. Do you know of any case permitting that?
@Demosthenes49 wrote:
The Fourth Amendment guarantees “all persons” the right to be secure from unreasonable searches and seizures. Corporations (which includes colleges and universities) are considered “persons” insofar as it is concerned.
That’s because they probably have a warrant for the child’s arrest, in which case, they don’t need to be notified. I’m assuming these are all cases not involving imminent danger to an individual or flight risk or any other common exigent circumstances obviating the need for a consent to search or for a warrant.
@circuitrider: Sure, but the question was whether colleges could assert a 4th amendment challenge on behalf of a student. That is, the college come in and say that the police illegally entered campus and therefore that they unlawfully seized the student, and that the student receive some remedy. That runs contrary to my understanding of the 4th amendment, in which the student must be the one to assert a violation of the student’s 4th amendment rights. You mentioned that there may be some in loco parentis right that permits colleges to do so. I’m unaware of any such right and wanted to know if you had any citation to back it up. Do you?
The college can certainly arrange to have its own attorneys represent the student at a preliminary hearing. Nothing unusual about that. And, since the Feds in your example were brazen enough to enter campus property to effectuate the arrest without first obtaining a warrant, the college’s attorney could invoke The Exclusionary Rule to forbid any evidence collected at the time of the illegal search and arrest from being entered at trial. If enough evidence is excluded, it’s very possible that the charge itself could be dismissed at the hearing.
@circuitrider: I agree that the college can help provide counsel to the students, barring any conflicts issues. The exclusionary rule, however, I can’t see helping much.
First, there’s no expectation of privacy in the campus itself. An immigration officer could happily walk onto campus and arrest someone. There’s no 4th amendment issue there. Dorm rooms are protected in most circuits though, which would invoke the exclusionary rule without a warrant (or some exception).
Second, who cares about evidence? The only thing immigration officials need is a visa end date (or no visa) and a person in the country after that date. True, they probably won’t be able to get you for anything else, but who cares? The concern is getting kicked out of the country, not some misdemeanor (minor in) possession charge.
@circuitrider, you are quite clearly missing the obvious point. Neither @Demosthenes49 nor I are talking about paying for lawyers (although it is a topic close to my heart), or whether a college is entitled to some protections under the constitution, or whether parents are served with an arrest warrant when minors are detained (although I agree that I have never heard of such a practice). We are trying to explain that the constitution and the laws of the particular state governs the government’s ability to arrest someone. The college has no say in that process. Therefore, President Roth, as an example, can say Wesleyan will demand a warrant before the police do this or that until he is blue in the face. It is basically hot air. If the law says the cops need a warrant, they will get one. If the law does not require a warrant under the particular circumstances, they won’t.
For what it’s worth, you are also mis applying the exclusionary rule.
As a judicial officer, I cringed when I read this. No. Law enforcement does not “always” need a warrant to enter private property in order to effectuate arrest “period.” I can think of at least a dozen situations in which no warrant (arrest or search) is required, and that’s just off the top of my head.
Moreover, as Barrons has noted, the feds could simply withhold federal aid payments to any sanctuary schools. I’m not sure the feds would be willing to go that far, but it certainly has the ability to do so.
ICE does not need a warrant to arrest any alien if they believe that they are in violation of immigration law. It is a real stretch to say that a public university campus (at least outside) enjoys some added protection over a city street. I expect that colleges that face loss of federal funds will quickly become cooperative.
Cringe.
For exercising their Constitutional rights? Cringe.
@AlexanderIII: Are we so sure that the feds could withhold funding? There seems to me to be two issues there. First, is there sufficient nexus between immigration and education funding? Illegal immigrants already can’t take out federally-backed student loans. Second, requiring reporting by colleges is requiring a speech act, with its own First Amendment issues.
@TooOld4School: On what basis do you claim ICE does not need a warrant? Are you suggesting ICE can break into someone’s house if they have PC to believe that person is an illegal alien?
@circuitrider: Saying “cringe” is not an argument. Academic arguments are all very nice, but you’ll notice the lawyers in this thread focus on the practical effects. There’s a reason for that.
@circuitrider, what constitutional right do you assume a college is exercising by refusing to enforce federal law? Also,
@Demosthenes49, I would assume that funding can be withheld for failure to report residency status for any funding source that is based at least in part on population, if nothing else. Second, talk about cringing, but do you want to go argue before a circuit court that your client is knowingly and consciously violating federal law, but thinks that the Feds refusing to give them money while they do it is a bridge too far? I sure don’t. And honesty compels me to state I have argued some doozies over the years.
Precedent is clearly on my side:
@post#70
@Ohiodad51: To circle back to your earlier point, are they paying me? If so I’d be happy to go argue.
In all seriousness though, the proper frame for the argument is limited government. Congress can achieve through spending conditions what they can’t achieve otherwise, but only to an extent. The spending clause isn’t a blank check (see what I did there) that lets them do anything they want. What does offering federal loans to citizens have to do with that school reporting whether or not illegal aliens also attend? I’m not saying it’s a winner, but I don’t think it’s so clear cut. Also, the client would be the school, not the student. The school isn’t violating any federal law other than the challenged one.
I’m also curious about the speech implications. I haven’t done enough research to form an opinion, but it’s at least something to look into. Government compelled speech is its own issue. There also also RFRA implications (what if a religious school doesn’t want to report, but for religious reasons?) and potential 5th amendment reasons (if my school hires an illegal alien TA, can you force me to report my violation of federal law?). I don’t know the answers to these, but I think someone would need an answer before stating outright that the government can just condition federal funding.
@circuitrider: Prove it. Show me one case permitting a college to intercede in an immigration case by making a 4th amendment argument. Show me one even analogous case. Show me a case where a visa overstay won because ICE couldn’t use evidence found in their home.
Think of the college grounds as being the same as a corporate office. If the police enter the office to arrest someone, the corporation may ask for a warrant for the officers to enter the building and arrest an employee. The same with a college, as the officers will need access to the dorm room or class room. If the officers have the warrant, the college is going to hand over the student.
If a church is giving sanctuary, it will not turn over the undocumented person. The person can’t leave the church structure, can’t go out of the building. Most colleges are open to the public outside of buildings. Unless the college gates off its grounds, officers aren’t going to be able to provide full sanctuary unless it confines the student to a single building.
In sanctuary cities, they are not preventing ICE or federal authorities from entering the city and arresting anyone within the city boundary, the city is refusing to report undocumented people whose status has become known to the city because of arrest, applying for services, etc. That’s what the colleges are doing, refusing to provide information about the student’s status.
@Demosthenes49, I get what you are saying, but I think I just have a more expansive view of federal power here, particularly since we are talking about enforcement of long existing law, rather than trying to challenge a new exercise of power. Then again, I work for the man now, so maybe I am just becoming power mad. You may have a point on the religious issue, although it is hard for me to see what religious principle is implicated. As far as employing TA’s, the failure to report may not get them, but the failure to pay taxes will.
@twoinanddone, college grounds are nothing like a corporate office. A dorm, maybe. But the grounds themselves? Not even close.
@circuitrider, if precedent supports your position, tell us what it is, because that would be a whole new area of the law to me.