Judge Won’t Block Ala. Immigration Law’s School Provisions

By Mark Walsh — September 29, 2011 2 min read
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A federal judge on Wednesday refused to block a provision of a controversial Alabama law on immigration that requires schools to determine the citizenship status of students.

The ruling came as part of a federal lawsuit challenging the broad Alabama law that affects unauthorized immigrants in employment, housing, contracts, and education.

U.S. District Judge Sharon L. Blackburn of Birmingham, Ala., granted the Obama administration’s request for a preliminary injunction blocking several of the law’s provisions, including one making it illegal under state law for unauthorized aliens to apply for or solicit work.

But she declined to block several other provisions, including one making it a crime for unauthorized aliens to fail to carry documentation papers.

Judge Blackburn also refused to block the law’s Section 28, the one requiring 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.

The U.S. Department of Justice, in its motion seeking to block the Alabama law, said the schools provision “would have a chilling effect on school attendance by children who are aliens or whose parents are aliens.”

The department cited Plyler v. Doe, the 1982 U.S. Supreme Court decision that held a state may not deny access to a basic public education to any child, whether that child is present in the country legally or not. The department noted that Justice and the U.S. Department of Education had sent a “dear colleague” letter to schools earlier this year reminding them of their obligation to enroll children regardless of their citizenship or immigration status.

In her opinion in United States v. Alabama, Judge Blackburn noted that information about a parent’s immigration status is not usually included on an Alabama birth certificate, nor on those from other states or countries.

“For purposes of determining the reach of [Section 28], the court assumes that school officials will not seek to determine the immigration status of parents beyond examination of the child’s birth certificate, and that such information is not included on the birth certificate,” the judge said. “Therefore, Section 28 does not compel school officials to determine the immigration status of a parent of a student.”

The judge also rejected the Justice Department’s other arguments against the schools provision. (The discussion of Section 28 begins at Page 102 of the opinion.)

Education Week‘s Nirvi Shah also reported on Wednesday’s decision, at the Learning the Language blog.

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