Does the First Amendment Apply?

/ March 20, 2025

Good morning:

Manhattan Institute scholars continue to examine the case of the former Columbia University graduate student, especially the claim that his detention violates the First Amendment.  

In his Washington Post debut, legal policy fellow Tal Fortgang makes the case that Mahmoud Khalil's supporters are wrongfully falling back on a free speech claim. They conflate speech and action because the facts and the law are not on their side. If the Trump administration violated Khalil’s procedural rights, that “would be unfair, illegal and unnecessary” and will be discovered in the ongoing legal process. But claims that the administration violated his free speech rights don’t pass legal muster.

Nor do the protections of the First Amendment apply to those who would join violent and intimidating mobs. In the New York Post, MI’s director of constitutional studies, Ilya Shapiro, lays out the three steps President Trump should direct Education Secretary Linda McMahon and Attorney General Pam Bondi to take to combat the continued presence of masked and antisemitic agitators on college campuses nationwide.

Colleges and universities were under constructive scrutiny from other MI scholars this week as well.

Fellow Renu Mukherjee’s new issue brief examines “percent plan” admissions policies in Texas, California, and Florida. These policies—under which the top seniors at every high school are guaranteed admission to the state university system—are far from being true meritocratic solutions. Instead, they often function as affirmative action by another name.

MI’s director of higher education policy, John D. Sailer, continues his activist-to-faculty pipeline series in City Journal. His original investigative reporting finds that ideological administrators of a large-scale university hiring initiative, funded through a National Science Foundation grant, look for “workarounds” to race-blind state policies.

Paulson policy analyst Neetu Arnold discovered other apparent efforts to contravene government efforts to restore colorblind meritocracy in education. In the Wall Street Journal, Arnold reveals how consultants are advising State Department-funded international schools to rebrand their DEI programs while keeping the racialist programming intact.

This newsletter highlights an unsettling development across the pond. Corbin K. Barthold of TechFreedom writes in City Journal about the U.K.’s efforts to force Apple to sabotage its encryption technology and give the U.K. government access to the contents of any iCloud account anywhere in the world, including in the United States. American lawmakers of both parties are speaking out against the effort and how it would violate Americans’ First and Fourth Amendment protections.

Continue reading for all these insights and more.

Kelsey Bloom
Editorial Director

Why “Percent Plans” for University Admissions Aren’t a Colorblind Success

By Renu Mukherjee | Manhattan Institute

In response to affirmative action bans, states like Texas, California, and Florida implemented “percent plans” that guarantee a certain percentage of top-ranked high school students automatic admission to state public universities. This approach to university admissions is supposedly a race-neutral alternative to college admissions. 

However, a new Manhattan Institute brief by fellow Renu Mukherjee examines these policies and finds that in some cases percent plans are not significantly different in practice from affirmative action, especially when they are concerned primarily with bolstering black and Hispanic enrollment and do not include standardized testing requirements.

The goal of university admissions should be furthering equal opportunity and student success, which requires the inclusion of SAT/ACT scores in the application process and a commitment toward colorblindness. State policymakers must remember that the use of racial preferences or policies that, while race-neutral on their face, are race-conscious in aim and effect, are prohibited.

The Columbia Protest Case Is About Immigration Law, Not Free Speech

By Tal Fortgang | The Washington Post

“The hair-on-fire reactions to Khalil’s detainment, which his defenders have characterized as a reprisal for his pro-Palestinian activism at Columbia University in New York, are not just overblown. They are completely misplaced. This is simply not a case that implicates free speech or the First Amendment. Undisputed facts, and the law that allows the U.S. government to deport even lawful permanent residents without a criminal conviction, make that abundantly clear.”

The Immigration and Nationality Act holds that “a noncitizen who ‘endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization’ is liable to deportation. Well-meaning critics warn that enforcing this provision violates the First Amendment’s broad protections. But unless Khalil can successfully argue that he has never been associated with (Columbia University Apartheid Divest) — despite ample evidence suggesting the contrary — there is simply no collision.”

How Trump Can Put a Stop to Masked Terror on Campus

By Ilya Shapiro | New York Post

“President Trump is right: ‘NO MASKS!’ That was his final jab in a Truth Social post this month in which he threatened to end federal funding for any college or university that allows ‘illegal protests’ — particularly the ugly antisemitic demonstrations that have dogged many campuses for nearly 18 months. ...

“The case against masks is also clear — and constitutional. Although the First Amendment protects freedom of speech, it doesn’t give anyone the right to join violent or intimidating mobs and otherwise engender public disorder. That’s exactly what protesters have done on college campuses across the country, driven by their hatred of Israel and Jews — donning masks precisely because they don’t want to be identified by police and campus administrators.”

The U.K.’s Alarming Turn Against Digital Privacy

By Corbin K. Barthold | City Journal

“In January, the United Kingdom’s Home Office—equivalent to the United States’s Department of Homeland Security—secretly demanded that Apple provide, upon request, backdoor access to any account on iCloud (Apple’s file-storage service) on the planet.  ... The American response to the U.K.’s behavior has, refreshingly, transcended party lines. ...

“The stakes are high. If the U.K. succeeds in compelling Apple to sabotage its own security, autocratic regimes—as well as other putatively liberal ones—will take note and follow suit. The U.S. must respond. A good start would be to revisit the terms of the U.S.-U.K. CLOUD Act agreement, which allows Britain to obtain data from U.S. tech firms without American oversight. Though the agreement bars the U.K. from targeting U.S. persons or collecting data in bulk, these guardrails now appear inadequate. It turns out we cannot trust the Brits to respect cybersecurity on our shores.”

DEI and the State Department

By Neetu Arnold | Wall Street Journal

“The Office of Overseas Schools at the State Department gives financial assistance to 193 international schools. In 2020 the State Department allocated $22 million to U.S.-assisted overseas schools. These schools teach children of U.S. foreign-service workers at diplomatic posts. They also share American-style education and values with foreign students. State Department-assisted schools educate nearly 140,000 students, a quarter of whom are American citizens.

“Given the important role these schools have in spreading American values abroad, it matters that they comply with State Department standards, such as halting DEI activities. Yet international school consultants have been advising schools to rename DEI programs to conceal their purpose. Consultants advise schools to add apolitical terms like “belonging” to DEI to mitigate criticism.”

A few more things ...

Albany to Crime Victims: Drop Dead / Hannah E. Meyers in the New York Post

MI fellow Renu Mukherjee explains why efforts by DOGE to radically reform federal civil services aren't actually radical.

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