Rep. Elise Stefanik (R-N.Y.) became the scourge of university leaders on Dec. 5, 2023, when she baited the presidents of Harvard, the University of Pennsylvania and MIT into seemingly tolerating calls for “genocide of the Jews.”
Their tepid responses cost two of them their jobs. At subsequent hearings of the House of Representatives Education and Workforce Committee, Stefanik scorched other university presidents for giving equivocal answers about campus antisemitism.
Stefanik’s latest target has been a legal clinic at the City University of New York School of Law, called CUNY CLEAR, an acronym for Creating Law Enforcement Accountability and Responsibility.
At a hearing last week, Stefanik berated CUNY Chancellor Felix Matos Rodriguez for CLEAR’s representation of Mahmoud Khalil, whom she called “the chief pro-Hamas agitator that led to the antisemitic encampments at Columbia.”
Whatever the merits of Stefanik’s other accusations, she is absolutely wrong about CUNY CLEAR. Representation of a controversial client is in the best tradition of legal education.
Khalil was a leader of the pro-Palestinian occupation at Columbia, advancing inflammatory claims and demands. He was also a lawful permanent resident — a green card holder — married to an American citizen.
Last March, Khalil was arrested by agents of U.S. Immigration and Customs Enforcement.
Although he was not charged with a crime, the Department of State asserted that Khalil’s green card had been revoked under the Immigration and Nationality Act of 1952, because his pro-Palestinian advocacy posed serious adverse foreign policy consequences for the U.S.
Khalil was whisked to a detention facility in central Louisiana. He was held for 104 days until his release was ordered by a federal judge. He is still facing deportation.
Outraged that CUNY CLEAR had played a key role in Khalil’s representation, Stefanik called upon Rodriguez to fire the CUNY professor who coordinated the defense.
Rodriguez was non-committal, promising only to investigate the situation. That was the tactful response, but he missed a teachable moment.
The mission of CUNY CLEAR is to support clients and communities “targeted by local, state, or federal government agencies under the guise of national security and counterterrorism.”
Although that may never be acceptable to Stefanik, Rodriguez should have explained that representing unpopular clients is what lawyers are supposed to do, and what law students should be taught to do.
CLEAR helped return Khalil from detention in Louisiana to his family, including a newborn son, in New York. That also allowed him greater access to his attorneys, which is essential if he is to have any chance of challenging his deportation.
I agree with almost nothing Khalil stands for, but I believe strongly in due process and fair trials. There is no right to appointed counsel in immigration cases, so Khalil’s representation could only come from organizations such as the ACLU and CLEAR.
In my years as a lawyer in Northwestern’s Bluhm Legal Clinic, from 1975 to 1987, I represented plenty of unpopular or outcast clients.
Some were obscure, including a lesbian mother seeking to regain custody of her daughter from the Illinois Department of Children and Family Services (which was hardly a foregone conclusion in those days). Others were notorious, such as the Ukrainian parents who wanted to take their 12-year-old son back to what was then the Soviet Union.
I also represented Jews for Jesus who had been arrested picketing American Nazi Party headquarters, and Jewish Defense League members for the same thing.
I represented Jewish leftists who had been prevented by a police cordon from protesting at a Nazi rally in a Chicago park. I worked with the Illinois ACLU during the Nazis-in-Skokie controversy.
There were surely Northwestern trustees, and local politicians, who were unhappy with some aspects of my client list, which included accused gang members and assorted criminal defendants, along with members of the Revolutionary Communist Party.
Nobody ever told me that representation should be withheld due to unpopular associations or opinions.
There is indeed antisemitism at CUNY, and throughout academia, which I have documented. The representation of Khalil is in an entirely separate category. It is grist for a grandstander like Stefanik, but it is not an example of antisemitism.
Among my most rewarding experiences as a clinic lawyer was obtaining the dismissal of charges against a 12 year-old girl accused of murdering her own baby.
In 1976, I could not convince prosecutors to treat my client as an abused child herself, rather than a criminal. The only evidence against her was a confession, extracted by police, which my students and I succeeded in suppressing as involuntary.
Decades later, I told the story in class. “So you got her off,” remarked a student.
“No, we got her justice,” I explained. That is what legal clinics do.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.
