The Effect of Anti-Immigration Legislation on Education

Brad Howes did well in Professor Birdsong’s Refugee and Asylum Law Seminar.  Mr. Howes is a teacher and has a number  of thoughts on how new state immigration laws may harm education of of undocumented students in the United States. He has given his permission for me to publish his paper on my blog.

 The Right to Write: The Effect of Anti-Immigration Legislationon Undocumented Students

By
Brad Howes

 I. Introduction

             Immigration is a hot topic across America today.  In fact, recently, state legislatures across the nation have sought to eliminate the opportunity to attend public school and receive a public education for students who are not legally living in this country.[1]  Whereas this article will only briefly discuss whether the entire population of our nation’s youth should actually be entitled to public education[2], it will discuss the attempt that current legislation has made to create discrepancies between the educational opportunities of legal citizens and undocumented children.  These discrepancies may deny children a right that was provided to them nearly thirty years ago by the Supreme Court in the decision of Plyler v. Doe.[3]  But is Plyler still valid?  Proponents of the new immigration statutes argue that Plyler is outdated, and see both legal and practical reasons that it should be overturned at this point in time.  However, those opposing the legislation have a foundation for their argument in Plyler and ultimately tug at the general public’s emotions by emphatically declaring, “Children are the future of our nation.”

            This article will debate the validity of state laws denying equal education for undocumented children.  In Part II, the article will discuss the case of Plyler v. Doe, the principle precedent in this area, and other previous decisions that explain rights of undocumented citizens.  Part III of the article provides a look at current legislation proposed by states such as Alabama and Arizona that would bind schools’ enrollment policies.  It will also elaborate on the benefits, both legal and practical, of implementing such legislation.   Part IV discusses arguments of legal and economic nature that are used by each side in discussing the issues presented by the legislature.  In Part V, the author will conclude the article with thoughts and recommendations for the future.

II.         Rights of Undocumented Children

            According to current case law, public elementary and secondary schools are required to educate undocumented children.[4]  Since the Supreme Court ruling in Plyler v. Doe in 1982, this has been a lightly contested right—until now.[5]   Plyler arose in response to a revision of Texas legislation[6] passed in 1975 that withheld state funds for the education of children not legally admitted into the United States and authorized local school districts to deny enrollment to such children.[7]  The purpose of the legislation was not intended to deny rights, but rather to avoid draining the state’s budget in the wake of increasing numbers of Mexican immigrants.[8]  In the years immediately following the advent of the revisions, one school district continued to enroll undocumented children.[9]  This suit was brought forth in 1977, when the district began charging tuition of $1,000 per child to enroll.[10]  The plaintiffs were a group of school-age children of Mexican descent who were not legally living in the United States.[11] 

            The lawsuit resulted in an initial victory for the students.[12]  The district court, in finding that the children were entitled to the benefits of the Equal Protection Clause of the Fourteenth Amendment, stated, “Without an education, these undocumented children, disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices . . . will become permanently locked into the lowest socio-economic class.”[13]  As a result, an injunction was granted to stop enforcement of this legislation.[14] The Court of Appeals of the Fifth Circuit upheld the injunction and it was subsequently taken up on appeal by the Supreme Court.[15]

            By the time the case had made its way to the highest court, the Supreme Court’s task was not so much to determine whether the law violated the Equal Protection clause, but whether the revised statute was substantially related to an important government interest[16]—Texas’s financial problems.[17]  This test, more strict than rational basis, but more lenient than strict scrutiny, became known as intermediate scrutiny.  Ultimately, the court of appeals affirmed the lower courts’ decisions, explaining that “it [was] thus clear that whatever savings might be achieved by denying these children an education, they [were] wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”[18]  In granting public education rights to undocumented children, the court concluded, “Legislation directing the onus of a parent’s misconduct against his children does not comport with the fundamental conceptions of justice” and that it “imposes [a] discriminatory burden on the basis of a legal characteristic over which children can have little control.”[19]

            Four justices voted in favor of the state, including Chief Justice Burger, who wrote the dissent.[20]  Justice Burger accused the majority of using “the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver.”[21]  While he wholeheartedly agreed that the deprivation of education for any children would be unfortunate[22], he emphasized, “That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.”[23]  Further discussion of anti-Plyler reasoning will be included later in this article as possible reasons why the holding should no longer be valid (in the wake of modern attempts to pass legislation).

            Over a decade later, the California legislature sought to test Plyler by submitting to voters Proposition 187, which “provide[d] for the cooperation between agencies of state and local government with the federal government, and establish[ed] a system of required notification by and between such agencies to prevent illegal aliens in the United States from receiving benefits or public services in the State of California.”[24]  The Proposition, which would require education personnel to report undocumented persons to appropriate officials and deny them of public services, including education[25], was passed by a vote of fifty-nine percent to forty-one percent.[26]  Among others, a group of undocumented minors who would be adversely affected by the Proposition filed suit, challenging the constitutionality of the Proposition.[27]

            The court ultimately held in favor of the students, deeming the Proposition unconstitutional because it “conflict[ed] with federal law as announced by the Supreme Court in Plyler v. Doe and [was] therefore preempted.”[28]  As a result, California school districts were subsequently prohibited from reporting any student who was discovered to be undocumented, and required the school districts to enroll the students regardless of whether they were legally living in the country.[29]  The National School Boards Association provides the following interpretation, as well as possible lingering issues, in regards to the decision in League of United Latin American Citizens v. Wilson:

Whether this ruling stands for the proposition that a school district could not question its students about their immigration status or whether it only stands for the proposition that questioning followed by denial of access violates Plyler is not entirely clear.  Thus, although this ruling suggests that merely investigating a student’s immigration status could be a violation of Plyler, it does not settle the question.[30]

It is no surprise then that current proposed legislation, the most recent installment of states’ effort to eradicate the negative impact of undocumented students in their schools, has once again brought thirty year-old Plyler back to the legal battlefield.

III.        State Legislation

1.         Arizona

            In early 2010, Arizona governor Jan Brewer signed into law perhaps “the broadest and strictest immigration measure in generations.”[31]  Arizona Senate Bill 1070 (SB 1070), also known as The Support Our Law Enforcement and Safe Neighborhoods Act, resurrected the immigration controversy, attempting to implement provisions that would have a trickle effect on the students in Arizona schools.[32]  Immediately upon the signing of the bill, the executive director of the Arizona School Boards Association expressed the opinion that it was the responsibility of the schools to educate each student, and that the results of the bill could have a “chilling” effect.[33] 

            Despite injunctions being put in place that prohibited SB 1070 from being fully implemented[34], subsequent bills, such as Arizona Senate Bill 1407 (SB 1407)[35] and Arizona Senate Bill 1611 (SB 1611)[36] have extended the controversy.  The main focus of SB 1407 was merely to probe students in order to collect data on the number of undocumented children in schools.[37]  That data would subsequently be used to determine the fiscal detriment those students caused upon the school systems.[38]  It is likely, however, that even if the bill did not seek to have undocumented students reported, it would seriously dissuade undocumented students from enrolling in and attending school.[39] 

            However, the latter of the two bills, referred to as an “Immigration Omnibus”, has been accused of being a “catch-all for radical proposals, designed to insert immigration enforcement into practically every facet of Arizonian life, including public benefits like . . . education.”[40]  Others call it “SB 1070 on steroids,” and comment that it may well require the current state motto to be scrapped in favor of “something directly out of 1984.”[41]   Substantively, the bill would require each school, whether public or private, to demand proof from each parent of their child’s legal status within thirty days of enrollment.[42]  Failure of the parent to provide such documentation after a second notice from the school would cause the school to notify local law enforcement of the possibility of undocumented persons present in schools, tipping them off to families living illegally in an area.[43]  If the previous, less-scathing bill dissuaded parents from enrolling their students in schools, the amped-up version undoubtedly would have an even greater effect.  In 2011, members of the Senate voted against the implementation of SB 1611, and at the time of this article, it remains a bill not passed into law.[44]

            2.         Alabama

            Like Arizona SB 1407, Alabama House Bill 56 (in its provisions specific to students) does not prohibit Alabama schools from providing an education to undocumented students.  However it does require schools to question students about their status and send data to the Alabama Department of Education each year.[45]  The bill specifically states:

“Illegal immigration is causing economic hardship and lawlessness in [the] state and that illegal immigration is encouraged when public agencies within [the] state provide public benefits without verifying immigration status.  Because the costs incurred by school districts for the . . . education of children who are . . . not lawfully present in the United States can adversely affect . . . students who are . . . lawfully present in the United States, the State of Alabama determines that there is a compelling need for the State Board of Education to accurately measure and assess the population of students who are not . . . lawfully present in the United States, in order to forecast and plan for any impact that the presence of such population may have on publicly funded education in this state.”[46]

            The law was scheduled to go into effect on September 1, 2011, but a United States district judge blocked it just days prior because she did not have adequate time to thoroughly analyze the law before the effective date.[47]  The judge was attempting a ruling of constitutionality based upon a complaint filed by the United States against the state of Alabama seeking injunctive relief on the grounds that the bill was preempted by federal law, and thus, violated the Supremacy Clause of the Constitution.[48]  A month later, the bill was given the green light by the district court, denying the United States’ Motion for Injunction.[49]  However, just three weeks later, the Eleventh U.S. Circuit Court of Appeals placed a temporary hold on parts of the law, including the portion aforementioned regarding the immigration status of students.[50]  Thus, Alabama plays the waiting game.

IV.        Arguments

            The question that must be answered is whether the laws violate the Supreme Court’s decision in Plyler and preempt federal law.  Arguments can be made from a legal perspective as well as a practical perspective on each side.   

            1.         Education is a Quasi-Fundamental Right[51]

            Legal arguments against the implementation of immigration laws like Alabama’s root themselves in the Plyler ruling.  The majority’s creation of an intermediate level of scrutiny for undocumented children[52] has already been discussed; however, it is important to analyze why it did so and why it may still be relevant.  Strict scrutiny is usually reserved for discussions involving fundamental rights—and since education has never been viewed as a fundamental right[53], it would have been inappropriate to weigh the Texas law against such scrutiny.  Thus, education was placed in a category of its own, being regarded as playing a “pivotal role . . . in sustaining our political and social heritage.”[54]  Furthermore, “education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.”[55] 

            The Court in Plyler quoted Brown v. Board of Education, which was heard nearly thirty years prior: 

“Today, education is perhaps the most important function of the state and local governments.  Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. . . Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.  In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”[56]

            Proponents for the anti-immigration laws argue that using an intermediate scrutiny was unnecessary because the Supreme Court had already determined that education was not a fundamental right at all.[57]  Thus, it can be argued that legislation that impacts educational funding[58] should only be subject to a rational basis standard of review, under which legislation would be constitutional if it was rationally related to a legitimate state interest.[59]  The state of Alabama has consistently listed funding and economic stability as the reason for implementing anti-immigration laws, especially those pertaining to schools.[60] 

            Furthermore, Alabama officials can revive the words of Justice Burger in the dissenting opinion of Plyler when he favored the state of Texas’s argument that the Fourteenth Amendment did not apply to illegal immigrants because they were not “within the jurisdiction” of the state or the country.[61]  He argued, “By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with the governmental services at the expense of those who are lawfully in the state.”[62]  Moreover, some Americans interpret the Constitution to mean that the Equal Protection Clause only applies to the rights and privileges explicitly mentioned within the text of the Constitution, namely life, liberty, and due process, “not discretionary benefits offered by the state such as twelve years of very expensive schooling, provided free.”[63] 

            2.         The Effect of Outside Legislation

            There are numerous other laws that indirectly relate to the education provision of Alabama’s anti-immigration law.  Some appear to validate the efforts, while others are based on the assumption that undocumented children are welcome in America’s schools and grants rights to such students under the theory expressio unius est exclusio alterius.[64]  Take, for example, the Individuals with Disabilities Education Act (IDEA).   It provides that “all children with disabilities” are entitled to a “free and appropriate public education.”[65]  In so doing, schools are required to create Individualized Education Plans (IEPs) that provide accommodations for students with disabilities so that their needs may be met.[66]  The statute does not mention exceptions for students who are undocumented or scenarios where IEP meetings should not be held when it concerns the children of undocumented immigrant parents.[67]  Thus, in applying the theory mentioned above, undocumented children are entitled to special education rights because there is no law that says they should not have them.  If children are entitled to special education rights within a public education system, then assuredly they are entitled to the right of free and appropriate public education itself.

            Other government-funded programs such as that which gives assistance to English Language Learners[68] and Pre-Kindergarten students[69], as well as the provision of the USDA which authorizes free lunches[70] for students, can be interpreted in the same way the IDEA is above.  Additionally, some undocumented students are protected under the McKinney-Vento Homeless Assistance Act.[71]  It provides that “homelessness alone is not a sufficient reason to separate students from the mainstream school environment”[72] and that “homeless children and youths should have access to the education and other services that such children and youths need to ensure that such children and youths have an opportunity to meet the same challenging State student academic standards to which all students are held.”[73]  Based on the provisions of McKinney-Vento, it is a wonder that these undocumented students don’t enroll themselves as homeless students without physical documentation.  In order for students to be protected under McKinney-Vento, they need only establish that they are receiving primary care from another family member or friend because their parents cannot care for them.[74]

            Finally, The Family Educational Rights and Privacy Act (FERPA)[75] prohibits schools (in most cases) from providing anything from students’ educational records to any third party without either the consent of a parent or a subpoena from the court.[76]  A student’s educational records include “records, files, documents, and other materials which . . . contain information directly related to a student” and “are maintained by an educational agency or institution.”[77]  The National Education Association has concluded that whether a student is undocumented is part of a student’s education records.[78]  The intentions of the Alabama legislature to create a record of undocumented students could be in direct violation of FERPA and would cost them a significant sum of money if they were to lose a lawsuit regarding the matter.[79]

            Just as there is educational legislation that supports the block of anti-immigration laws, there is also other loosely related legislation and case law that leans in favor of the implementation of such laws.  One such federal law, 8 U.S.C. § 1611, is titled “Aliens who are not Qualified Aliens Ineligible for Federal Public Benefits.”[80]  Federal public benefits include grants, loans, and licenses provided by any agency of the United States, as well as “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefits, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States.”[81]  Nowhere does the statute claim to be all-inclusive, and it would be nearly impossible to create an exhaustive list in a country where public benefits are available.  However, postsecondary education is specifically tagged as a benefit to which undocumented persons are not entitled.  This is the best guidance in creating the inference that primary education is also a public benefit.

            Certain case law also supports the idea that undocumented individuals are not entitled to public benefits.  In 2001, an undocumented woman in New York was denied prenatal care (at the expense of the government) due to her immigration status, despite need exhibited by her struggling unborn child.[82]  Although the mother submitted affidavits suggesting the likelihood of danger to the unborn child if appropriate care was not provided[83], the court held that the Welfare Reform Act “should be read to deny federally-sponsored prenatal care to unqualified aliens.”[84]  Prenatal care is a more important right than a public education; thus, if a rational basis test is upheld like it was in Lewis v. Thompson, the education provisions of the immigration laws should not be given any greater opportunity in the courts.

            Lastly, though completely unrelated to the welfare statutes and cases recently discussed, proponents to the immigration legislation may argue that schools that enroll and educate undocumented students are actually harboring them, a violation of a federal statute. The applicable harboring statute holds any person criminally liable for “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or means of transportation.”[85]  The Fifth Circuit has made it clear that “in any place [is] meant to be broadly inclusive, not restrictive.”[86]  Thus, schools could be seen as harboring illegal aliens by allowing undocumented students the opportunity to have a safe haven within the walls of a school without reporting them to law enforcement.[87]  Further, the Immigration and Naturalization Act, which provides the ability for agents to question a person “about his or her right to remain in the United States,”[88] is also enforceable on school grounds.[89]  Each of these federal statutes favor the strict guidelines set forth to regulate undocumented persons in the United States.

            The idea that schools may be harboring undocumented persons also opens up opportunities for immigration raids at schools, even though in 1993 the Immigration and Naturalization Services said its role was “to attempt to avoid apprehension of persons and to tightly control investigative operations on the premises of schools.”[90]  A New Mexico case in 2004 nearly allowed the courts to rule upon whether presence of immigration officials on campus violated Plyler, but the case settled before it was ruled upon.[91]  In that case, two boys were stopped on campus and asked to show identification.[92]  One boy failed to do so, and Border Patrol was called.[93]  In his argument, the boy claimed that the interference caused such a distraction that “a student cannot be educated in a local school while he is being questioned.”[94]

            3.         Economic Impact

            A third argument for and against the education provisions of anti-immigration legislation is the impact it has on each state’s budget.  Public education is the greatest expense that undocumented persons impose on state governments.[95]  The cost was nearly $8,000 a year per student in 2010, easily surpassing the cost of any welfare program or other public service, such as police and fire protection.[96]  Couple that with the fact that in 2008, over five percent of students in seventeen states were undocumented children, and the burden on the states’ budgets becomes clear.[97]  In fact, one formula used to calculate the current cost of educating undocumented children comes up with a dollar amount nearing 32 billion dollars.[98]  However, this figure does not take into account possible costs of services for special education and English language instruction, which services a large number of the students receive.[99]  Incidental costs must also be addressed for services like transportation to and from school and free or reduced lunches.  Interestingly, federal statute explicitly states that undocumented persons are not to be entitled to the public service benefit of food assistance.[100] 

            Still, opponents of the law believe that it will actually cost the state more in recording and policing efforts.  In the wake of implementing these laws, schools will be left with staffing issues.  Specifically, administrators in Alabama feel that it would be impossible to go through with the type of recording procedures that would be required.[101]  One Alabama principal expressed the following to the National Education Association:  “We don’t have the personnel to do all the work that is needed to find out which parents are legal.  That’s my biggest concern—putting it off on the schools to police illegal immigration.”[102]

            Others see the economic reasoning for the laws as “fake fixes” or temporary “band-aids.”[103]  The chief deputy in one county in Alabama is also concerned about the increased costs that the laws will impose upon his department.[104]  He states, “I am more concerned on where we will put the ones we detain.  We have a jail that is already overcrowded.  [The law] is another unfunded mandate to a county struggling to keep its head above water.”[105]

V.         Recommendations

            Despite the arguments made for and against the prohibition of undocumented students in school already discussed, there is one other issue that is more important.  The politically correct term for a person who does not legally reside in the United States is now undocumented person.  Until recently, the term illegal alien was more prevalent.  The replacement of the word illegal can have great implications on society’s view of this population’s rights.  It is important not to lose focus that undocumented persons are breaking the law; they are not the victims.  By providing educational rights to undocumented students, governments are not carrying out legal enforcement appropriately.  There is the argument that the children are not the ones breaking the law, but they are people living illegally in the United States.  Age is not immunity from immigration statutes.

            Of course there exists the argument from Plyler that refusing to enroll students into schools would leave them “on the streets uneducated,”[106]  but it is well established that education is not even a fundamental right for children who are United States citizens or those otherwise legally residing in the country.  In taking the minority opinion in Plyler, Justice Burger reminded that, “The Constitution does not constitute [the Supreme Court] as ‘Platonic Guardians’ nor does it vest in [the] Court the authority to strike down laws because they do not meet standards or desirable social policy, ‘wisdom,’ or common sense.”[107] Withholding education from any child is disappointing, but it is important to remember that it was never the intention of the Constitution or of federal or state governments to perpetually provide free public education.[108]

            Although many feel that Alabama’s anti-immigration law will result in a prohibition of enrollment of undocumented children, currently its only requirement is that intense records be kept and turned in.  However, if that day comes, federal statutes make it clear that undocumented persons are not entitled to public benefits.  If an undocumented, medically needy mother and unborn child are not entitled to government assistance during a high-risk delivery, healthy school-aged children should not be either.[109]  There must be a bright line standard that confers rights in some cases and specifically not in others.    

            Finally, the astounding costs of educating undocumented children warrant the need for legislation like what Alabama has proposed.  School districts across the country are struggling to make ends meet, closing schools, decreasing allowances per student, and eliminating jobs.  The costs of implementing the law are not as significant as the savings that could occur if the school enrollment was appropriately regulated.  One report estimates that “immigration will account for ninety-six percent of the increase in the school-age population in the United States over the next fifty years.[110]  Illegal aliens will account for as much as half of the increase.”[111]  The problem is only going to get worse.  It is also disheartening that many of these students are declining the education that would be offered to them in their home countries.  It is not as if the students have no opportunity to become educated.

            As it relates to public education, Alabama’s anti-immigration legislation is simply “helping to discourage and deter illegal immigration.”[112] But illegal immigration is a federal issue, and one state alone, even with the support of several other states, cannot cure a nationwide problem.  It is crucial for other states to create similar legislation so that families of undocumented individuals do not migrate from state to state, draining education resources from each.    States that do not have the financial burden now will one day suffer.  If that is not a reasonable suggestion, the Supreme Court must take one of these states’ bills up on appeal of constitutionality and determine its validity so that there can be a uniform standard. The nation has a strong interest in the future of our youth, but an even stronger interest in upholding the integrity of its laws.