Court Rejects Alabama’s School Immigration Checks

By Mark Walsh — August 21, 2012 3 min read

A federal appeals court has blocked Alabama’s requirement that schools check the immigration and citizenship status of new students, ruling that the provision violates the 14th Amendment’s equal-protection clause.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, unanimously embraced the broader argument against the school immigration checks put forth by a civil rights coalition rather than the more limited reasoning advanced by President Obama’s administration that the provision was pre-empted by federal immigration law.

The schools provision, known as Section 28, “imposes a substantial burden on the right of undocumented school children to receive an education,” U.S. Circuit Judge Charles R. Wilson wrote for the panel on Aug. 20 in Hispanic Interest Coalition of Alabama v. Governor of Alabama. “Section 28 operates to place undocumented children, and their families, in an impossible dilemma: either admit your unlawful status outright or concede it through silence.”

The 11th Circuit court panel also ruled on several other provisions of the Alabama immigration law, blocking some but upholding a provision of Alabama’s law, along with a similar provision in a Georgia statute, that authorizes the police to check the immigration status of people they have detained. Those rulings comport with a June decision by the U.S. Supreme Court upholding under a facial challenge the “show me your papers” provision of Arizona’s immigration law. The high court struck down other provisions of that state’s law in Arizona v. United States.

My Education Week colleague Lesli A. Maxwell, who visited Alabama for a story earlier this year about the schools provision, also covers the 11th Circuit decision in her Learning the Language blog.

Section 28 requires Alabama schools to determine upon enrollment whether the enrolling child “was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.”

The measure calls on schools to check the birth certificates of students, and if no birth certificate is available, the child’s parent or guardian must notify the school within 30 days of the child’s citizenship or immigration status. If the procedures aren’t met, schools are to presume that the child is an “alien unlawfully present” in the United States.

The court rejected Alabama’s argument that the provision treats every student equally because schools are required to check the documentation of all new students.

“Clearly, the law contemplates no interest in the birthplace of any child who is lawfully present, and the blanket requirement that all students show a birth certificate is simply a necessary means by which Section 28 forces unlawfully present aliens to divulge their unlawful status,” Judge Wilson said.

He compared the Alabama provision to a tuition requirement for undocumented immigrants seeking to enroll in Texas schools that was struck down by the U.S. Supreme Court in its landmark 1982 decision in Plyler v. Doe.

“Section 28 imposes similar obstacles to the ability of an undocumented child to obtain an education—it mandates disclosure of the child’s unlawful status as a prerequisite to enrollment in public school,” Wilson said.

The court went on to reject the state’s justifications for the law, which include a need to gather data about undocumented alien children.

“The state officials concede that the data collected through Section 28 is inaccurate, and they have not otherwise suggested that the relevant data cannot be obtained in other ways,” Judge Wilson said. “In short, we do not find these justifications, which fit into the general category of ‘because we want to know,’ substantial enough to justify the significant interference with the children’s right to education under Plyler. We therefore conclude that section 28 violates the Equal Protection Clause.”

In its separate opinion in United States v. Alabama, the same 11th Circuit panel ruled that the U.S. Department of Justice’s challenge to Section 28, based on the limited argument that the provision was pre-empted by federal immigration law, did not need to be addressed because of the court’s broader equal-protection ruling.

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


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