Federal Judge Sharon Lovelace Blackburn
Judge Sharon Lovelace Blackburn, a George H.W. Bush appointee, just issued an opinion striking down parts of Alabama’s newly-enacted anti-immigrant law
. Although the opinion blocks several of the law’s provisions, including the provision making it a crime for undocumented immigrants to work, the opinion leaves untouched a provision of Alabama law requiring public schools to systematically determine the immigration status of public school students and to report the number of undocumented students in their district to the state.
Very few undocumented families will be willing to send their children to public school if the school is collecting data on whether or not they should be deported. Accordingly, today’s decision is a victory for Alabama’s efforts to intimidate undocumented families from sending their children to school, and will almost certainly encourage state lawmakers who share Alabama’s hostility towards immigrants to enact copycat laws.
It’s not at all clear, however, that this decision will be upheld on appeal. Judge Blackburn’s opinion relies on irrelevant distinctions, misrepresents binding Supreme Court precedent, and even ignores the plain language of the Alabama law. The meat of the law being challenged in this lawsuit provides that:
Every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall 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 and qualifies for assignment to an English as Second Language class or other remedial program.
The statute accomplishes this goal by setting up an elaborate records checking process. First, all school children are required to present their birth certificate to the school. If the child was born outside the United States or they fail to provide a birth certificate, then their family must either provide the school with official documentation of the student’s immigration status or swear under penalty of perjury that the child is lawfully present. All children whose families fail to complete these steps will be presumed to be in the country illegally.
Bizarrely, Judge Blackburn concluded that this decision does not violate a Supreme Court decision forbidding states from requiring immigrants to register with the state. Even more bizarrely, Blackburn also concluded that the Alabama law “does not compel school officials to determine the immigration status of a parent of a student.” Perhaps she missed the part of the law where it says that “[e]very public elementary and secondary school in this state . . . shall 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.”
So the good news is that Blackburn’s reasoning is very weak and is unlikely be particularly convincing to a court of appeals. The bad news is that her decision appeals to the extremely conservative United States Court of Appeals for the Eleventh Circuit — the same appeals court that recently ignored nearly 200 years of Supreme Court precedent to strike down part of the Affordable Care Act.
Additionally, it is worth noting that today’s decision rested solely on the narrow legal grounds that Alabama’s law is not “preempted” by federal law. It did not consider the looming question of whether the Supreme Court’s decision in Plyer v. Doe, which forbids public schools from denying an education to undocumented immigrants, invalidates Alabama’s attempt to systematically intimidate undocumented families against sending their kids to school. A group of immigration advocates filed a lawsuit claiming that the Alabama law violates Plyer and a decision could come down on that case as soon as today.
Should the Alabama law ultimately be upheld, however, it will do nothing to actually deport the millions of undocumented families living in the United States. What it will do, however, is create an entire generation of Alabama residents who, having been denied their right to be educated, will grow up with few options other than crime or exploitation.