Alabama Defends School Immigration Checks

By Mark Walsh — March 02, 2012 2 min read

The state of Alabama on Thursday defended its immigration law before a federal appeals court, including provisions that require schools to gather data about the citizenship and immigration status of students.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, heard arguments about Alabama’s 2011 immigration law that affects unauthorized immigrants in employment, housing, contracts, and education.

The law’s Section 28 requires public schools to “determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.”

The provision requires students or their parents to present an original birth certificate at the time of enrollment. For those who cannot present proper documentation, schools are required to assume they are aliens “unlawfully present” in the United States. The measure requires schools to maintain statistics about the numbers of such students.

In response to a lawsuit filed by President Obama’s administration seeking to block enforcement of the law (and challenging its constitutionality), a federal district judge in September issued an opinion that refused to enjoin the enforcement of the schools provision, among others. But the 11th Circuit blocked Section 28 in an October order.

On March 1, the 11th Circuit panel heard three hours of arguments on the Alabama law, as well as on a Georgia immigration law also being challenged by the federal government. (That law does not include a similar schools provision.)

The Atlanta Journal-Constitution reports on the case:

Judge Beverly Martin expressed concerns about how information about students' immigration status could be used. She pointed out that Alabama must turn over such information to federal authorities if they ask for it, potentially making it possible for students to be deported. The Supreme Court has ruled that school districts must educate all children regardless of their legal status. "Once they declare themselves, doesn't that interfere with their constitutional right to a basic public education, which has been declared by the Supreme Court, as you know?" she asked.

Lawyers arguing for Alabama told the 11th Circuit court panel that the law would not violate the rights of students, the paper said.

Prim Escalona, a deputy solicitor general for Alabama, said federal officials are the ones who determine who is deported. She added collecting information about the immigration status of students could help Alabama officials make school spending and policy decisions. "Perhaps they collect this data and the numbers are low and it informs the public debate and they say, 'Well, maybe we don't need certain laws or maybe we do need certain policies,'" Escalona said.

The state also defends Section 28 in a court brief filed in the 11th Circuit.

“Nothing in Section 28 instructs or authorizes school officials to deny a free public education to any students, regardless of how they respond to the data-collection process,” the state said in its brief. “Whether or not the [Obama] administration believes that this provision is good policy, it is hardly clear Congress wanted to preclude states from enhancing public knowledge in this way.”

In a separate 11th Circuit brief, in a parallel challenge to the law by the Hispanic Interest Coalition of Alabama, the state also argues that Section 28’s requirements do not violate the 14th Amendment’s equal-protection clause.

“Section 28 is clear and the evidence is undisputed that the same questions are asked with respect to all children at the time of their enrollment,” Alabama contends in that brief. “Section 28 imposes no consequences on any student or parent for failing to comply with it—let alone consequences based on immigration status or any other status. And the record is undisputed that Alabama schools remain open under Section 28 to all children regardless of their immigration status (or their parents’ status).”

At the outset of Thursday’s arguments over the Alabama and Georgia immigration laws, the 11th Circuit panel announced that it would not issue a decision in the cases until after the U.S. Supreme Court rules on a challenge to an Arizona immigration law. That law has provisions similar to those in the Alabama and Georgia laws, but not one requiring school immigration checks.

The high court will hear arguments in Arizona v. United States on April 25, with a decision expected by late June.

A version of this news article first appeared in The School Law Blog.

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