Equity & Diversity

Shield From Deportation Threat to Get Day at High Court

By Mark Walsh — April 08, 2016 7 min read
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Educators and immigration activists are weighing in on a hot-button case up for argument at the U.S. Supreme Court later this month with broad implications for millions of undocumented immigrant parents, their children, and schools.

The April 18 oral arguments in United States v. Texas (Case No. 15-674) will consider the legality of an Obama administration program that would protect from deportation and give work authorization to some 3.6 million undocumented immigrant parents of children who are U.S. citizens or lawful permanent residents.

Although the legal issues concern the authority of the administration to issue the guidance for Deferred Action for Parents of Americans, or DAPA, the justices are being flooded with briefs offering social science evidence about how removing the threat of deportation of undocumented parents helps children, emotionally, socially, and in school.

Upholding DAPA would “mean that children of those parents will no longer live in daily fear that they will come home from school and find one or both of those parents gone, because they are in detention and face removal,” Thomas A. Saenz, the president and general counsel of the Mexican-American Legal Defense and Education Fund, or MALDEF, said in an interview.

MALDEF intervened in the case on behalf of three undocumented mothers in Texas, two of whom have school-age children who are U.S. citizens. Those mothers, who are identified in court papers only as Jane Doe #1, #2, and #3, volunteer in their children’s schools and accompany their classes on field trips.

“Though this reprieve would not provide any legal status, pathway to citizenship, or defense to removal, if the [DAPA] guidance is implemented the Jane Does would be able to apply for deferred action in the hope of obtaining some temporary certainty in their lives and the lives of their children,” the MALDEF brief says.

The DAPA guidance was challenged by Texas and 26 other states, which argue that the Obama administration exceeded its authority under several federal immigration laws by adopting the program by executive action.

A federal district court sided with Texas and issued an injunction to block the program, and the U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld that decision.

One of Texas’ arguments is that DAPA will cause it and other states to incur additional costs in the areas of law enforcement, health care, and education.

Texas “pays at least $7,903 annually for each unlawfully present alien enrolled in public school,” the state’s brief says, and in one recent year, “Texas absorbed additional education costs of at least $58,531,100 stemming from illegal immigration.”

Texas notes in its brief, without commentary, that it and other states must provide an education to undocumented immigrant children under the U.S. Supreme Court’s 1982 decision in Plyler v. Doe, which held that Texas violated the equal-protection clause of the 14th Amendment by withholding funds from school districts for the education of undocumented immigrant children.

“This court has repeatedly recognized that states incur significant costs from unlawful immigration,” Texas tells the justices in its brief. “The states will be injured if DAPA causes more aliens to demand these costly services.”

Educators Join the Fray

Also implicated in the case is a related Obama administration program known as Deferred Action for Childhood Arrivals, or DACA. That program, announced in 2012, defers immigration enforcement and provides work authorization for nearly 2 million eligible youths and young adults who came to the United States as children and have lived here since 2007.

The DACA program has been operating since then, though the administration’s 2014 effort to expand it to cover a wider range of ages and arrival dates and to lengthen the period of deferred action from two years to three was blocked along with the separate DAPA initiative as a result of the Texas lawsuit.

Several friend-of-the-court briefs filed on the Obama administration’s side by educators and education groups praise DACA and cite studies about its impact.

“DACA is unique among immigration policies because it makes educational attainment a condition for eligibility,” says a brief by a group of “educators and children’s advocates” that includes the American Federation of Teachers, the National Education Association, and other education groups. They point out that eligible applicants must have a high school diploma or its equivalent or be enrolled in school, including K-12 education, adult education, literacy, or career-training programs.

Thus, the expansion of DACA would encourage “more individuals to remain in or return to school in order to qualify for the program, improving rates of educational attainment among the eligible population,” the brief says.

Steve Zimmer, the president of the board of the Los Angeles Unified School District, said in an interview that “nothing has stabilized the lives of students in our district more than DACA.”

He signed on to a separate brief supporting the federal expansion filed by various California education, civic, and business leaders.

“DACA has taken an entire set of stressors off the table for a group of students that came to this country through no decision of their own,” Zimmer said.

These education briefs also point to studies that suggest implementation of the DAPA program would aid schoolchildren by removing stress from their family’s lives.

“The relief of pressure on undocumented parents would extend to their children,” said Randy Capps, the director of research for U.S. programs at the Migration Policy Institute, based in Washington. A state such as Texas with a large population of Latinos who are U.S.-born children of undocumented parents would see lower dropout rates and increased college enrollment.

“And parents would be able to get a driver’s license, and work, and be more likely to go out in public,” said Capps, the lead author of a report on DAPA. “That would make their interactions with the schools easier.”

A Range of Arguments

Of course, some of these are policy arguments. When the justices hear the case April 18, they will confront an array of legal arguments, starting with whether Texas or other states even would suffer concrete injuries from the DAPA and expanded DACA programs, thus giving them proper legal standing to sue.

That’s where Texas raised its arguments about increased costs for education and other areas. Lower courts found that the state had legal standing to sue on the basis that it would have to issue driver’s licenses to DAPA beneficiaries, increasing costs in that area.

U.S. Solicitor General Donald B. Verrilli Jr. starts with that issue, arguing in a brief that Texas and other states are not regulated by the DAPA and expanded DACA policies and have no standing. He goes on to argue that federal immigration statutes give the secretary of the Department of Homeland Security ample authority to adopt deferred-action policies.

“Millions of undocumented aliens live and work in this country, and Congress has directed the secretary to focus his limited resources on removing serious criminals and securing the border,” Verrilli says in the brief. “By deferring action for individuals who are not priorities for removal, the [DAPA and expanded DACA] guidance enables DHS to better focus on its removal priorities.”

Texas, which did not respond to an interview request, says in its brief that “DAPA would be one of the largest changes in immigration policy in our nation’s history.” It goes on to make numerous arguments why the Obama administration exceeded its powers in adopting the policies.

Michael M. Hethmon, the senior counsel at the Immigration Reform Law Institute, a Washington-based group that opposes the Obama policies and filed a friend-of-the-court brief on Texas’ side, said in an interview that Congress has complete authority over federal immigration policy.

“Congress didn’t just turn over the keys and the deed to the Department of Homeland Security and say, ‘Go for it’,” he said.

There are a number of stark realities surrounding the case. The Supreme Court agreed in January to take up the case at the request of the Obama administration, whose only hope of lifting the injunction and implementing the policies before the president leaves office would be a victory at the high court by this June.

But with the death of Justice Antonin Scalia in February, only eight justices will consider the case. A deadlock would affirm the 5th Circuit injunction and effectively doom the policies.

While there is the potential for the case to fizzle out to one degree or another, observers say it could also result in a major statement on immigration, an issue that has vexed public policy for decades.

“What the Supreme Court rules on this case is going to matter a lot to the discourse about immigration in American society,” said Capps of the Migration Policy Institute. “If it says, ‘No, you can’t have this [DAPA] status,’ that will probably threaten the original DACA as well. And it will send a signal that ‘illegal’ means illegal, and that will embolden some people to send a harmful message that will be felt in the schools.”

“On the other hand, if the court lifts the injunction” and rules in favor of the administration, Capps said, “that will send a message that lifts a stigma about immigration.”

A version of this article appeared in the April 13, 2016 edition of Education Week as Shield From Deportation Threat to Get Day at High Court

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