Impact of Immigration Ruling Weighed for Ala. Student Status Checks

By Mark Walsh — June 27, 2012 4 min read
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Now that the U.S. Supreme Court has ruled on Arizona’s immigration law, however muddled or open to interpretation that decision may be, the state of Alabama will soon be filing new legal arguments defending its requirement that schools check the immigration status of new students and other provisions of its own tough law.

Two challenges to Alabama’s law, including to the schools provision, are pending before the U.S. Court of Appeals for the 11th Circuit, in Atlanta. A three-judge panel of that court heard arguments in March, but the judges stated that they would wait until the Supreme Court ruled in the Arizona case before completing their legal review of the Alabama measure.

The Alabama 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 has been enjoined by the courts, and thus has not been in force. But its mere passage prompted an exodus of immigrant families from Alabama last year.

Arizona’s law had no similar provision, but advocates on both sides of the immigration debate were looking for ammunition in the high court’s June 25 decision in Arizona v. United States.

In the majority opinion, Justice Anthony M. Kennedy struck a tone that emphasized the preeminence of the federal government in immigration matters, and he said that “discretion in the enforcement of immigration law embraces immediate human concerns.”
But he also agreed that “Arizona bears many of the consequences of unlawful immigration.”

The court struck down three provisions of that state’s law, dealing with a requirement that aliens carry registration documents, prohibitions on working and applying for work, and a requirement that the police arrest those they believe are removable under federal law. But the justices upheld a provision some view as the heart of Arizona’s law, which requires state and local police officers to attempt to determine the immigration status of those they lawfully stop if there is “reasonable suspicion” the person is in the United States illegally.

Justice Kennedy said that federal immigration law encourages the sharing of information between federal and state law enforcement authorities. He said that provision could be subject to further challenge when it was applied in practice.

Gov. Robert Bentley of Alabama, a Republican, said in a statement shortly after the decision that while his state’s law has many provisions similar to Arizona’s, “the laws are not identical.”

“State laws on immigration are required because the federal government has refused to enforce its own immigration policies,” the governor said.

Alabama’s law, including the schools provision, has been challenged in a lawsuit by the Obama administration purely on “pre-emption” grounds. That is, the administration argues that the law’s provisions intrude on an area where federal law is supreme. A coalition of civil rights groups, meanwhile, has challenged the provisions on 14th Amendment equal-protection grounds in addition to pre-emption.

Michael K.T. Tan, a staff lawyer with the American Civil Liberties Union’s Immigrants’ Rights Project, based in San Francisco, said the Supreme Court’s Arizona decision bolstered the case against Alabama’s school immigration checks.

“The upshot of the Supreme Court’s decision is that states have no business doing what Alabama has done,” said Tan, whose group is one of those challenging the law. “The [education] provisions are aimed at attrition through enforcement, driving out certain groups of people from the state.”

Mary Bauer, the general counsel of the Southern Poverty Law Center, a Birmingham, Ala.-based group that is among the civil rights groups challenging the law, said the Supreme Court’s rejection of a provision of the Arizona requirement that aliens carry registration documents was helpful to the challenge to the Alabama schools provision.

“The Supreme Court said the state may not enact its own alien-registration scheme,” Bauer said. “And at the end of the day, that is really what [Alabama’s] Section 28 is. The state’s notion that it is merely gathering general data on [undocumented] children is silly and disingenuous to us.”

“What they want to do is create a list of who is undocumented, and in that sense it is an alien-registration scheme,” Bauer said.

In court documents in the 11th Circuit, Alabama has argued that “Section 28 simply involves data collection and does not affect a child’s ability to enroll in public school.”

Michael M. Hethmon, the general counsel of the Immigration Reform Law Institute, an affiliate of the Federation for American Immigration Reform, took a different view of the Arizona decision.

“On a superficial level, the [Arizona] decision supports that particular provision of the Alabama law,” said Hethmon, who helped write Alabama’s immigration law. He said the underlying principle of the Arizona provision upheld by the Supreme Court is that “Congress has virtually mandated cooperation in information exchange” between state and federal authorities.

“That’s what the Alabama [schools] section is all about"--the collection of data by state education officials about a fast-growing student population that has special needs in the schools, he said.

The supplemental briefs from both sides in the 11th Circuit about the effects of the Arizona decision on the Alabama case are due early next month.

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