JURIST Guest Columnist Kevin Johnson of the University of California Davis School of Law says that Alabama’s immigration law highlights the civil rights implications of the recent state immigration laws and, in the case of Alabama, show parallels with previous efforts to prevent desegregation…

Earlier this year, the state of Alabama, the site of many iconic episodes of US civil rights history, passed what many observers believed — and state political leaders bragged — was the toughest state immigration law in the US. This is no small feat. In the last five years, the nation has seen a flood of progressively tougher state and local immigration laws, including those passed in Arizona, Georgia and South Carolina, all states that have experienced a recent growth in their Hispanic population.

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB 56) includes a hodge-podge of enforcement-oriented immigration provisions. One provision, common to many modern state immigration laws including Arizona’s legislation, is that local police who lawfully stop a person are required to verify their immigration status if the officer has a “reasonable suspicion” that the person may be in the nation unlawfully. HB 56 also includes a novel provision, Section 28, which requires public elementary and secondary schools in Alabama to determine if an enrolling student (1) was born outside the jurisdiction of the US or is the child of an unlawfully present alien and (2) qualifies for assignment to an English as second language class or other remedial program.

The US Department of Justice (DOJ) challenged much of the Alabama immigration law on the ground that it was preempted by federal law and usurped the federal power to regulate immigration, as it has in Arizona and South Carolina. The district court enjoined four provisions from going into effect. An appeal to the US Court of Appeals for the Eleventh Circuit is pending, with a stay barring two provisions from going into effect during the appeal, including Section 28 (which the district court did not enjoin).

Alabama is not the first state to act with respect to the public education of undocumented elementary and secondary school students. For years, state and local governments have chafed at their obligations under Plyler v. Doe to undocumented schoolchildren. In 1994, California voters passed Proposition 187, an initiative which would have denied access to the Golden State’s public K-12 schools for undocumented children. That strategy, designed to provoke the Supreme Court to revisit and overrule Plyler v. Doe, failed. A federal court enjoined the core provisions of Proposition 187 from going into effect. Tough budgetary times have offered Alabama an excuse for renewing in different form the challenge to Plyler v. Doe and the educational rights of undocumented students.

On November 1, Assistant Attorney General Thomas Perez sent a letter to Alabama school districts requesting information to ensure that the civil rights of immigrant schoolchildren, as well as others, are not adversely affected by HB 56. The letter states, in part, that:

It has come to our attention that the requirements of Alabama’s H.B. 56 may chill or discourage student participation in, or lead to the exclusion of school-age children from, public education programs based on their or their parents’ race, national origin, or actual or perceived immigration status, or based on their homeless or foster care status and consequent lack of documentation.

As you know, in Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held that a State may not deny a child equal access to public education based on his or her immigration status. Noting the “pivotal role of education” in our society, id. at 221, the Court concluded that denying innocent children the benefit of schooling provided to other students within the district was unconstitutional. Id. at 230. On May 6, 2011, the U.S. Departments of Justice and Education issued guidance on the Federal obligation to provide equal educational opportunities to all children residing within your district.

The letter proceeds to request information from the school districts about the race, national origin, and English Language Learner status of students who have withdrawn from school or have unexplained absences or a pattern of absences, and enrollment data for the last few years.

Section 28 is part of an omnibus immigration enforcement bill that is designed to make life so difficult for undocumented immigrants, many of which are Mexican, that they leave the state. From a civil rights perspective, Perez’s letter expresses the concern that Section 28 might “chill” undocumented students from attending public school as guaranteed by Plyler v. Doe. The Alabama schools’ much-publicized collection and reporting of data has alarmed immigrant students, lawful and unlawful. Absences are up, enrollments are down.

Students may be discouraged from attending public schools for fear of disclosing their, and/or their parents’, immigration status information. They might well fear that if the information is collected and reported, then it might end up in the hands of immigration enforcement authorities resulting in their removal from the US. This fear among undocumented immigrant students and parents is not far-fetched given the harsh national debate over immigration and the record-setting deportations each year.

Alabama undoubtedly would deny that it has any desire to inhibit anyone from exercising their civil rights. Section 2 of HB 56 offers some indication of the legislative intent behind Section 28 stating, in relevant part, that:

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.

States also could arguably want student immigrant status information for planning purposes and for determining their costs in educating undocumented students so that they can better lobby for support from the US government, which is primarily in charge of immigration. However, a legal and political goal appears to be at the forefront of reasons for Section 28. Michael Hethmon of the Immigration Law Reform Institute, which seeks to reduce illegal and undocumented immigration to the US, is the reported drafter of Section 28 and has claimed that its goal is to collect the data he believes necessary to overturn Plyler v. Doe. This, of course, suggests a lack of concern with the exercise of rights of undocumented children under that case.

In the end, Perez has put Alabama on official notice that the US government will be watching Alabama and its treatment of immigrants and Hispanics. Oddly out of touch with US civil rights history, Alabama Attorney General Luther Strange has questioned Perez’s authority to ask for basic enrollment information from the school districts. Such objections highlight for the nation the civil rights implications of the Alabama immigration law and remind people of the parallels between HB 56 and Alabama’s strident — at times, violent — stand against African Americans seeking to desegregate the public school system in the 1950s and 1960s. Unfortunately, until Congress enacts some kind of comprehensive immigration reform or the Supreme Court makes clear what role the states have, if any, in immigration enforcement, the nation can expect state legislatures to continue to pass immigration enforcement laws like Alabama’s.

Kevin Johnson is Dean of the University of California Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies. Johnson has published extensively on immigration law and policy, racial identity and civil rights. He is one of the editors of the ImmigrationProf blog.

Suggested citation: Kevin Johnson, Alabama Highlights Civil Rights Concerns in State Immigration Laws, JURIST – Forum, Nov. 12, 2010, http://jurist.org/forum/2011/11/kevin-johnson-alabama-immigration.php.