Judge Suspends Portions of Alabama Immigration Law Affecting K-12 Education

Last Updated: October 27, 2011

This article appeared in the October 2011 Rural Policy Matters.

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Earlier this month a federal judge temporarily blocked implementation of portions of Alabama’s controversial new immigration law, including its K-12 education provisions, while the law is on appeal by the U.S. Department of Justice.

The blocked education provisions include a requirement that schools determine and report the legal status of all newly enrolling children and their parents. The law also required extensive school-level analysis of information related to students who are themselves or whose parents are undocumented.

HB 56, dubbed the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, bars undocumented residents from holding employment, entering any contract, receiving any public service or benefit, and enrolling in public college, among other restrictions. It requires law enforcement officers to “detain any alien whose lawful immigration status cannot be verified;” requires all public employees to report known or suspected violations; imposes strict limitations on the ways that citizens can assist persons who are or could be reasonably thought to be undocumented; prohibits landlords from renting to “illegal aliens; ”and, bars any public official or court from limiting or restricting enforcement of any of the law’s provisions.

The U.S. Department of Justice and several civil rights organizations, churches, and advocacy groups challenged the law. On September 29th, a federal judge temporarily blocked some portions of the law, but allowed most of it, including the school provisions, to go into effect. The Justice Department appealed and on October 14th the 11th Circuit Court of Appeals issued an order blocking the school provisions and a provision requiring immigrants to carrying documentation at all times.

During the roughly two weeks the school reporting provisions were in effect, fluctuated significantly, with an overall absentee rate higher than usual.

A chilling effect?

Proponents of the HB 56, including legislative backers, have been clear that the law’s intent is to drive undocumented immigrants out of the state. But state officials have also said publicly that the law is not intended to block immigrant students, including undocumented children, from attending public elementary or secondary school.

This is an important point because the Supreme Court ruled in Plyler v. Doe in 1982 that schools could not take actions that had a “chilling effect” on the enrollment of undocumented children. To this point, HB 56 also prohibits the disclosure of personal information about students.

However, Section 2 of HB 56 justifies the need for the law largely on the basis of the impact of immigration on public education:

Section 2. The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. Because the costs incurred by school districts for the public elementary and secondary education of children who are aliens not lawfully present in the United States can adversely affect the availability of public education resources to students who are United States citizens or are aliens lawfully present in the United States, the State of Alabama determines that there is a compelling need for the State Board of Education to accurately measure and assess the population of students who are aliens not lawfully present in the United States, in order to forecast and plan for any impact that the presence such population may have on publicly funded education in this state…

Specifically, the law requires schools to determine whether any student enrolling for the first time was born outside the jurisdiction of the U.S. or is the child of “an alien not lawfully present” and qualifies for English as a Second Language or any other remedial program. Parents have 30 days to produce documentation.

School districts must report data to the State Board of Education, which must submit an annual public report to the Legislation. That report must include data, aggregated by public school, on the numbers of students who are U.S. citizens and the number of immigrant students who are “lawfully present” and the number who are believed to be “unlawfully present” as well as the number of students in each category participating in English as a Second Language Programs.

Further, the State Board report is required to “analyze and identify the effects upon the standard or quality of education provided to students who are citizens of the United States residing in Alabama that may have occurred, or are expected to occur in the future, as a consequence of the enrollment of students who are aliens not lawfully present in the United States.” The report must also “analyze and itemize the fiscal costs to the state and political subdivisions thereof of providing educational instruction, computers, textbooks and other supplies, free or discounted school meals, and extracurricular activities to students who are aliens not lawfully present in the United States.”

Finally, the law requires the State Board to “prepare and issue objective baseline criteria for identifying and assessing the other educational impacts on the quality of education provided to students who are citizens of the United States, due to the enrollment of aliens who are not lawfully present in the United states” and include these assessment in its annual report.

Reported Increase in Bullying

A number of news media have reported a rise in hostility, including bullying in schools, toward persons of color, especially Latinos. The U.S. Department of Justice has established a hotline and email for residents to report threats or violence that seems related to the law.

Several public officials, including school administrators, have said that they have not seen an increase in the number of complaints. But critics of the law claim that victims are afraid to make reports out of fear that they, or their undocumented friends or relatives, will be targeted for detainment by law enforcement.

Building a case against Plyler  

Since the original Plyler ruling, courts have upheld the rights of undocumented children to public education, striking down provisions in several states that could have dampened participation in school.

But the New York Times reported earlier this month that Alabama’s law may be part of a larger effort to challenge Plyler. According to an October 27th NYT article by Campbell Robertson, much of Alabama’s law was written by Michael M. Hethmon, general counsel for the Immigration Reform Law Institute, an organization that works to restrict immigration.

According to the article, Hethmon stated that challenges to Plyler had not been successful because they lacked “evidence the court found missing in Plyer.” Robertson quotes Hethmon as saying that reliable information on the number of “illegal alien students… could be compared with other sorts of performance or resource allocation issues.”

For now, the K-12 education provisions of HB 56 are on hold while challenges to the law wend their way through the courts. It is anticipated that the law will eventually be reviewed by the U.S. Supreme Court.

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Read more from the October 2011 Rural Policy Matters.