The Trump administration announced earlier in the month that it was changing the rules for foreign students in the United States. Given that COVID-19 forced most universities to shift to online teaching, foreign students had been allowed to stay in the United States and continue their educations online. The Trump administration tried to take this option away; foreign students doing coursework online would be subject to removal –deportation, followed by a ten-year statutory ban on admission to the United States.
Facing opposition from hundreds of universities, the administration subsequently abandoned these changes, while leaving legal space to try again later. What is striking, however, is how much of the public comment on these changes began with a single moral notion: cruelty. Elizabeth Warren, President of Harvard Lawrence Bacow, and American Association for the Advancement of Science President Sudip Parikh described these new legal norms as cruel in public statements. This is fascinating – in part because, for much of the past fifty years, the notion of justice has dominated moral discourse about public affairs. In the philosophical academy, the roughly fifty years since John Rawls’s A Theory of Justice have led to sophisticated theorizing about the nature of justice – understood here as a concept relying upon political equality and the avoidance of social unfairness. What, though, compels us to reintroduce the notion of cruelty, to adequately critique Trump’s approach to migration?
Something can be cruel, in the first instance, without being unjust; we can be cruel towards those to whom we have no particular duties of political equality. Indeed, Michel de Montaigne, the 16th century humanist – and Judith Shklar, his 20th century intellectual descendant – both took cruelty to be a natural human failing, which has a particular home in those spaces in which people are not predisposed to think of each other as moral and political equals. We are, said Montaigne, often tempted towards cruelty towards those who are vulnerable to us; it is the fact of their vulnerability, in part, which makes us want to hurt them. The desire to hurt, moreover, is at the heart of what cruelty is. All policy – no matter how well-designed – will cause pain to some people; the goal for public policy is to figure out how to design that policy, so that the pain is minimized (and distributed fairly). Cruel policies, though, take the hurt of some people to be, not a necessary evil, but a positive good; cruelty, as Montaigne has it, involves taking the pain of one’s enemies to be a sort of spectacle, watched for enjoyment, rather than regretted and subjected to public justification.
On this analysis, the concept of cruelty seems quite appropriate for the changes recommended by the Trump administration. Adam Serwer, in an earlier comment on Trump’s approach to migration, made the point succinctly: The cruelty is the point. The ability to mark out some people as subject to disproportionate pain is a sort of ceremonial invocation of differential status. They are outsiders, and can be hurt without good reason, and that fact in itself marks the insiders as special. The foreign students hurt by the proposed policy are perfect tools for this sort of ritualized cruelty. These students are, after all, foreign nationals attending institutions of higher education. President Trump’s populist base has made no secret of its disdain for both students and people from other countries. The pain experienced by such students would be significant; they would have found their courses of study disrupted, their careers put on hold, and the hard work of academic discovery – running experiments, writing papers, doing field research – made impossible. The benefits to the United States from these policy changes would have been negligible – indeed, the policy would have been likely to harm the United States economy – but that is largely irrelevant; the policy changes would not need to help anyone – they were intended simply to hurt, and if Montaigne’s analysis is correct, then that fact marks them out as cruelties. There may have been other government purposes at play – such as convincing foreign students to go elsewhere in the future – but it is hard to find any explanation for the proposed changes more convincing than the sheer desire to punish those foreign students who have decided to study in the United States.
The proposed changes have been rescinded, for the moment; but those of us who work in higher education spent a week fielding panicked emails from foreign students – whose reaction to these proposals ranged from mystification to terror. There are any number of reasonable views about what purposes ought to be served by migration policy. We might hope, however, that the mere imposition of pain upon the vulnerable should not be among those purposes. When such policies as these are reintroduced – and they will be – we can only hope that understanding them as cruel can begin the process by which their cruelty is overcome.