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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
_________________________________________________________________ CASE NO. 11-14532-CC
D.C. Docket No. 2:11-cv-2746-SLB _______________________________________________________________
UNITED STATES OF AMERICA, et al. Plaintiffs/Appellants,
vs. STATE OF ALABAMA, et al.
Defendants/Appellees. ________________________________________________________________
CASE NO. 11-14535-CC D.C. Docket No. 5:11-cv-2484-SLB
______________________________________________________________ HISPANIC INTEREST COALITION OF ALABAMA, et al.,
Plaintiffs/Apellants vs.
GOVERNOR OF ALABAMA, et al., Defendants/Apellees
______________________________________________________________ On Appeal From the United States District Court
For the Northern District of Alabama
_____________________________________________________________
BRIEF AMICI CURIAE OF LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), THE HISPANIC ASSOCIATION OF COLLEGES AND UNIVERSITIES (HACU), THE HISPANIC COLLEGE FUND (HCF), NAFSA: ASSOCIATION OF INTERNATIONAL EDUCATORS (NAFSA) AND MULTICULTURAL EDUCATION, TRAINING & ADVOCACY INC. (META,INC.) IN SUPPORT OF PLAINTIFFS APPELANTS ______________________________________________________________
Roger L. Rice Miguel A. Pérez-Vargas Multicultural Education, Training & Advocacy, Inc., META, Inc. 240 A Elm Street, Suite 22 Somerville, MA 02144 Counsel for Amici Curiae Telephone:(617)628-2226 Facsimile: (617)628-0322
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 1 of 17
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Counsel certifies that, pursuant to 11th Cir. R. 26.1-1, the following persons have
an interest in the outcome of this case:
Abate, Michael P., Counsel for Plaintiff/Appellant;
AIDS Action Coalition, Plaintiff/Appellant;
Alabama Appleseed, Plaintiff/Appellant;
Alabama Coalition against Domestic Violence (ACADV), Amicus Curiae;
Alabama Council and Human Relations, Amicus Curiae;
Alabama Education Association (AEA), Amicus Curiae;
Alabama Fair Housing Center et al., Amicus Curiae;
Alabama New South Coalition, Amicus Curiae;
Alabama NOW, Amicus Curiae;
Alabama State Conference of the National Association for the Advancement of Colored People (NAACP), Amicus Curiae; Albin, Ramona C., Counsel for Plaintiff/Appellant;
Alianza Latina en contra de la Agresion Sexual (ALAS), Amicus Curiae;
American Friends Service Committee, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 2 of 17
American Immigration Lawyers Association (AILA), Amicus Curiae;
American Unity Legal Defense Fund, Defendant/Appellee;
Argentine Republic, Amicus Curiae;
Arizona Coalition Against Domestic Violence, Amicus Curiae;
Arte Sana, Amicus Curiae;
Artrip, Eric J., Counsel for Plaintiffs/Appellants;
Bentley Robert, Governor of Alabama, Defendant Appellee;
Blacksher, James U., Counsel for Defendant/Appellee;
Boat People SOS, Plaintiff/Appellant;
Break the Chain Campaign, Amicus Curiae;
Brinkmann, Beth S., Counsel for Plaintiff/Appellant;
Broder, Tanya, Counsel for Plaintiffs/Appellants;
Brooke, Samuel, Counsel for Plaintiffs/Appellants;
Brooks, J.R., Counsel for Defendants/Appellees;
Brooks, Taylor P., Counsel for Defendants/Appellees;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 3 of 17
Broussard, Robert L., District Attomey for Madison County, Defendant/Appellee;
Bruner, Ben, Counsel for Plaintiffs/Appellants;
Bui, Thy B., Counsel for Amicus Curiae ACADV, et al.;
California Women's Law Center, Amicus Curiae;
Casa de Esperanza (Minnesota), Amicus Curiae;
Casa de Maryland, Inc., Amicus Curiae;
Ceja Zamora, Maria D., Plaintiff/Appellant;
Central Alabama Fair Housing Center, Amicus Curiae;
Central American Resource Center, Amicus Curiae;
Cheer, Shiu-Ming, Counsel for Plaintiffs/Appellants;
Chicago Alliance Against Sexual Exploitation (CAASE), Amicus Curiae;
Chilakamarri, Varu, Counsel for Plaintiff/Appellant;
Clark, Christopher R., Counsel for Amicus Curiae The United States of Mexico, et al.;
Coalition of Labor Union Women, Amicus Curiae;
Coalition to Abolish Slavery & Trafficking (CAST), Amicus Curiae;
Colorado Coalition Against Domestic Violence, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 4 of 17
Connecticut Sexual Assault Crisis Services, Inc., Amicus Curiae;
Counsel of Mexican Federations in North America /Consejo de Federaciones Mexicanas en Norteamericana, Amicus Curiae;
Craven, Larry E., Interim State Superintendent of Education, Defendant-Appellee;
Crook, Jamie L. Crook, Counsel for the Amicus Curiae Central Alabama Fair Housing Center, et al.;
Cummings, Michelle, Plaintiff/Appellant;
Dane, Stephen M., Counsel for the Amicus Curiae Central Alabama Fair Housing Center, et al.;
Davis, James W., Counsel for Defendants/Apellees
Desormeau, Katherine, Counsel for Plaintiffs/Appellants;
Dewey & LeBoeuf LLP, Counsel for Amicus Curiae The United States of Mexico, et al.;
Dominican American National Roundtable, Amicus Curiae;
DreamActivist.org, Plaintiff/Appellant;
Equality Alabama, Amicus Curiae;
Escalona, Prim F., Counsel for Defendants/Appellees;
Fair Housing Center of North Alabama, Amicus Curiae;
Fairbanks, Misty, Counsel for Defendants/Appellees;
Family Values @ Work Consortium, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 5 of 17
Federation of Southern Cooperatives/ Land Assistance Fund, Amicus Curiae;
Federative Republic of Brazil, Amicus Curiae;
Fleming, Margaret L., Counsel for Defendants/Appellees;
Freeman, Steven M., Counsel for Amicus Curiae The Anti-Defamation League;
Fuller, Randy, Superintendent of the Shelby County Public School System,
Defendant/Appellee;
Gardner, J. Cecil, Counsel for the Amicus Curiae ABA, et al.;
Gehring Flores, Gaela K., Counsel for Amicus Curiae NAACP, et al.;
Gelernt, Lee, Counsel for Plaintiffs/Appellants;
Georgia Coalition Against Domestic Violence, Amicus Curiae;
Gespass, David, Counsel for Amicus Curiae NAACP, et al.;
Gillespie, Katherine A. Gillespie, Counsel for the Amicus Curiae Central Alabama Fair Housing Center, et al.;
Gomez, Martha L., Counsel for Plaintiffs/Appellants;
Gorniak, Carla, Counsel for Amicus Curiae The United States of Mexico, et al.;
Greater Birmingham Ministries, Plaintiff/Appellant;
Haile, Esayas, Plaintiff/Appellant;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 6 of 17
Hall, Christopher P., Counsel for the Amicus Curiae NACDL;
Hawaii State Coalition Against Domestic Violence, Amicus Curiae;
Hill, Frieda, Chancellor of Postsecondary Education, Defendant/Appellee;
Hispanic Association of Colleges & Universities, Amicus Curiae;
Hispanic College Fund, Amicus Curiae;
Hispanic Federation, Amicus Curiae;
Hispanic Interest Coalition of Alabama, Plaintiff/Appellant;
Huntsville International Heip Center, Plaintiff/Appellant;
Immigration Equality, Amicus Curiae;
Interpreters and Translators Association of Alabama, Plaintiff/Appellant;
Iowa Coalition Against Sexual Assault (Iowa CASA), Amicus Curiae;
Jadwat, Omar C., Counsel for Plaintiffs/Appellants;
Jane Doe # 1, Plaintiff/Appellant;
Jane Doe # 2, Plaintiff/Appellant;
Jane Doe # 3, Plaintiff/Appellant;
Jane Doe # 4, Plaintiff/Appellant;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 7 of 17
Jane Doe # 5, Plaintiff/Appellant;
Jane Doe # 6, Plaintiff/Appellant;
Jeff Beck, Plaintiff/Appellant;
Jimmerson, Ehm, Plaintiff/Appellant;
Joaquin, Linton, Counsel for Plaintiffs/Appellants;
John Doe # 1, Plaintiff/Appelant;
John Doe # 2, Plaintiff/Appellant;
John Doe # 3, Plaintiff/Appellant;
John Doe # 4, Plaintiff/Appellant;
John Doe # 5, Plaintiff/Appelant;
John Doe # 6, Plaintiff/Appellant;
Karp, Jessica, Counsel for Plaintiffs/Appellants;
Keaney, Melissa S., Counsel for Plaintiffs/Appellants;
Kelly, Nancy, Amicus Curiae;
Kentucky Coalition for Immigrant and Refugee Rights, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 8 of 17
Krishna, Praveen S., Counsel for Plaintiff/Appellant;
Langham, Jefferey E., Superintendent of the Elmore County Public School System,
Defendant/Appellee;
Lapointe, Michelle R., Counsel for Plaintiffs/Appellants;
Lawyers' Committee for Civil Rights Under the Law, Amicus Curiae;
League of United Latin American Citizens (LULAC), Amicus Curiae;
Legal Momentum, Amicus Curiae;
Ling, Sin Yen, Counsel for Plaintiffs/Appellants;
Long, Pam, Plaintiff/Appellant;
Maer, Foster S. Counsel for Plaintiffs/Appellants;
McKinney, Rebekah Keith, Counsel for Plaintiffs/Appellants;
McMahan, Michael P., Counsel for the Amicus Curiae NACDL;
Molina Garcia, Bonard I., Counsel for Amicus Curiae NAACP, et al.;
Mukherjee, Elora, Counsel for Plaintiffs/Appellants;
Multicultural Education, Training & Advocacy, Inc., Amicus Curiae;
Naomi Tsu, Counsel for Plaintiffs/Appellants;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 9 of 17
NAFSA: Association of International Educators, Amicus Curiae;
National Asian Pacific American Women's Forum, Amicus Curiae;
National Association for Chicana and Chicano Studies, Amicus Curiae;
National Association of Criminal Defense Lawyers (NACDL), Amicus Curiae;
National Association of Social Workers and the Alabama Chapter of NASW,
Amicus Curiae;
National Coalition Against Domestic Violence, Amicus Curiae;
National Council of Jewish Women, Amicus Curiae;
National Council of La Raza, Amicus Curiae;
National Education Association (NEA), Amicus Curiae
National Employment Law Project, Amicus Curiae;
National Fair Housing Alliance, Inc., Defendant/Appellee;
National Guestworker Alliance, Amicus Curiae;
National Latina Institute for Reproductive Health; National Women's Law Center, Amicus Curiae;
National Lawyers Guild, Amicus Curiae;
Neal, Allison, Counsel for Plaintiffs/Appellants;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 10 of 17
Neiman, Jr., John C., Solicitor General, Counsel for Defendants/Appellees;
Nevada Network Against Domestic Violence, Amicus Curiae;
New Mexico Coalition of Sexual Assault Programs, Inc., Amicus Curiae;
Newman, Chris, Counsel for Plaintiffs/Appellants;
Oakes, Brian, Counsel for the Amicus Curiae ABA, et al.;
O'Brien, Alice, Counsel for the Amicus Curiae AIEA, et al.;
Orrick, William H. III, Counsel for Plaintiff/Appellant;
Oshiro, Erin E., Counsel for Plaintiffs/Appellants;
Park, Jr., John J., Counsel for Plaintiff/Appellant
Parker, Jr., William G., Counsel for Defendants/Appellees;
Payne, Joshua Kerry, Counsel for Defendants/Appellees;
Pedersen, Amy, Counsel for Plaintiffs/Appellants;
Perales, Nina, Counsel for Plaintiffs/Appellants;
Perez-Vargas, Miguel A., Counsel for the Amicus Curiae Hispanic Association of
Colleges and Universities, et al.;
Plurinational State of Bolivia, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 11 of 17
Raksha, Amicus Curiae;
Reeves, C. Lee II, Counsel for Plaintiff/Appellant;
Republic of Chile, Amicus Curiae;
Republic of Colombia, Amicus Curiae;
Republic of Costa Rica, Amicus Curiae;
Republic of Ecuador, Amicus Curiae;
Republic of El Salvador, Amicus Curiae;
Republic of Guatemala, Amicus Curiae;
Republic of Honduras, Amicus Curiae;
Republic of Nicaragua, Amicus Curiae;
Republic of Paraguay, Amicus Curiae;
Republic of Peru, Amicus Curiae;
Republic of Uruguay, Amicus Curiae;
Rice, Roger, Counsel for the Amicus Curiae Hispanic Association of Colleges and Universities, et al.;
Rubio, Freddy, Counsel for Plaintiffs/Appellants;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 12 of 17
Samual, Don, Counsel for the Amicus Curiae NACDL;
Schoen, David I., Counsel for the Amicus Curiae The Anti-Defamation League;
Schwartz, Dale M., Counsel for the Amicus Curiae The Anti-Defamation League;
Schwartz, Robert A., Counsel for Amicus Curiae NAACP, et al.;
Schwarz, Ghita, Counsel for Plaintiffs/Appellants;
Segura, Andre, Counsel for Plaintiffs/Appellants;
Sen, Diana S., Counsel for Plaintiffs/Appellants;
Service Employees International Union, Plaintiff/Appellant;
Sheinburg, Steven C., Counsel for the Amicus Curiae The Anti-Defamation League;
Shin, Susan L., Counsel for Amicus Curiae NAACP, et al.;
Shultz, Benjamin M., Counsel for Plaintiff/Appellant;
Sikh American Legal Defense & Education Fund, Amicus Curiae;
Simpson, Michael D., Counsel for the Amicus Curiae ABA, et al.;
Sinclair, Winfield J., Counsel for Defendants/Appellees;
Smith, Deborah S., Counsel for the Amicus Curiae AILA;
Society of American Law Teachers, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 13 of 17
Solano, Henry L. Counsel for Amicus Curiae The United States of Mexico, et al.;
South Alabama Center for Fair Housing, Amicus Curiae;
South Asian Americans Leading Together, Amicus Curiae;
Southern Christian Leadership Conference, Amicus Curiae;
Southern Coalition for Social Justice, Amicus Curiae;
Southern Regional Joint Board of Workers United, Plaintiff/Appellant;
Spears, G. Brian, Counsel for Plaintiffs/Appellants;
Spina, Thomas J., Counsel for the Amicus Curiae NACDL;
State of Alabama, Defendant/Appellee;
Stern, Mark B., Counsel for Plaintiff/Appellant;
Steven P. Rice, Counsel for Amicus Curiae ACADV, et al.;
Still, Edward Counsel for Amicus Curiae The United States of Mexico, et al.;
Strange, Luther, Attorney General of the State of Alabama, Defendant/Appellee and Defendants' Counsel;
Sugarman, Kenneth J., Counsel for Plaintiffs/Appellants;
Sweeney, Donald B, Jr., Counsel for Defendants/Appellees;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 14 of 17
Tan, Michael K. T., Counsel for Plaintiffs/Appellants;
Tenny, Daniel, Counsel for Plaintiff/Appellant;
Tesfamariam, Fiseha, Plaintiff/Appellant;
Thau, Christopher Barton, Plaintiff/Appellant;
The Anti-Defamation League, Amicus Curiae;
The Dominican Republic, Amicus Curiae;
The Montgomery Improvement Association, Amicus Curiae;
The National Asian Pacific American Bar Association, Amicus Curiae;
The National Association of Latino Elected and Appointed Officials, Amicus
Curiae;
The National Dominican American Council, Amicus Curiae;
The National Fair Housing Alliance, Amicus Curiae;
The National Immigration Law Project of the National Lawyers Guild, Amicus
Curiae;
The New Orleans Workers' Center for Racial Justice, Amicus Curiae;
The United Mexican States, Amicus Curiae;
The United States Hispanic Leadership Institute, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 15 of 17
Thompson, Barbara W., Superintendent of the Montgomery County Public School
System Defendant/Appellee;
Tumlin, Karen C., Counsel for Plaintiffs/Appellants;
Turner, Andrew H., Counsel for Plaintiffs/Appellants;
United Food and Commercial Workers (International), Plaintiff/Appellant;
United Food and Commercial Workers (Local), Plaintiff/Appellant;
United States of America, Plaintiff/Appellant;
University of Cincinnati College of Law Domestic Violence and Civil Protection
Order Clinic, Amicus Curiae;
Upton, Daniel, Plaintiff/Appellant;
Vance, Joyce White, Counsel for Plaintiff/Appellant;
Vermont Network Against Domestic and Sexual Violence, Amicus Curiae;
Victims Rights Law Center, Amicus Curiae;
Viramontes, Victor, Counsel for Plaintiffs/Appellants;
Voces de La Frontera, Amicus Curiae;
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 16 of 17
Wan-en, Charles D., Superintendent of the DeKalb County Public School System, Defendant/Appellee;
Wang, Cecilia D., Counsel for Plaintiffs/Appellants;
Warkynski, E. Casey, Superintendent of the Huntsville City School System, Defendant/Appellee;
Washington Empowered Against Violence (WEAVE), Amicus Curiae;
Watson, Jr., Herman, Counsel for Plaintiffs/Appellants;
Webster, Matt, Plaintiff/Appellant;
Werner, Daniel, Counsel for Plaintiffs/Appellants;
West Virginia Coalition Against Domestic Violence, Amicus Curiae;
West, Tony, Counsel for Plaintiff/Appellant;
Wilkenfeld, Joshua, Counsel for Plaintiff/Appellant;
Wisconsin Coalition Against Domestic Violence, Amicus Curiae;
Wisconsin Coalition Against Sexual Assault, Amicus Curiae;
Zall, Barnaby W., Counsel for Plaintiff/Appellant;
9 to 5, National Association ofWorking Women, Amicus Curiae.
United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC
C- 17 of 17
Pursuant to Fed. R. App. P. 26. 1, counsel also makes the following disclosures:
1) For non-governmental corporate parties, please list all parent corporations:
None.
2) For non-governmental corporate parties, please list all publicly held companies
that hold 10% or more of the party's stock:
None.
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT…………………………………………………..C-1
TABLE OF CONTENTS………………………………………………………….i
INDEX OF CITED AUTHORITIES……………………………………………...ii
INTEREST OF THE AMICI CURIAE …………………………………………....1
ARGUMENT ……………………………………………………………………..7
I. Federal Law Has Spoken Clearly with Regards to Elementary and Secondary Education and Pre-Empts Section 28 ………………………......7
II. Section 28 Violates the Rights of Undocumented Schoolchildren and their U.S. Citizen Siblings under the Equal Protection Clause of the Fourteenth Amendment …………………………………..……………………………15
CONCLUSION ………………………………………………………………......28
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
Exhibit A: U.S. Department of Education, “Dear Colleague” Letter, May 1, 1997
Exhibit B: Declaration of Miguel Perez Vargas
Exhibit C: Declaration of Michael Fix
Exhibit D: Declaration of Dr. Rosa Castro Feinberg
ii
INDEX OF CITED AUTHORITIES
Cases Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968, 1987 (2011) …....................................................................11 Plyler v. Doe, 457 U.S. 202 (1982)....................................................... passim League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 774 (C.D. Cal.,1995).........................................................10 League of United Latin American Citizens v. Wilson ,
997 F. Supp. 1244, 1255-56 (C.D. Cal.,1997)…...........................................11
Statutes and Legislative Materials 8 U.S.C. §1621(c)(1)(B)…............................................................................10 8 U.S.C. §1643(a)(2) ….........................................................................passim Fed. R. App. P. 29(c)(5)……………………………………………………...7 P.L. 104-193, Aug. 22, 1996, 110 Stat. 2260 ….............................................9 The Gallegly Amendment, H.R. 4134, Sections 601 (a) and 602 (c) …................................................................11,12 Other Authorities Alabama State Department of Education, EL Policy & Procedures Manual http://alex.state.al.us/ell/?q=node/27 and http://alex.state.al.us/ell/node/58 …..............................................................17
iii
Alabama Department of Finance, Education Trust Fund Net Receipts Fiscal Years 2006-2007 Through 2011-2012, p. xii, available at: http://budget.alabama.gov/pdf/fundrec/ ETF_Receipts.pdf…......................................................................................21 Associated Press, Hispanic Students Vanish from Alabama, http:// www. suntimes. com/ news/nation/7974307-418/hispanic-students- vanish-from-alabama-schools.html………………………………………..18 Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, http://www.nytimes. com/2011/10/04/ us/after-ruling-hispanics-flee- an-alabama-town.html ?pagewanted=all…………………………………..18 David Martin, Hispanic Students Vanish from Alabama Schoos, http:// www.usatoday. com/news/nation/story /2011-09-30 / Alabama -immigration/50619602/1…………………………………………………18 David A. Martin, Twilight Statuses: A Closer Examination of the Unauthorized Population. MPI Policy Brief, June 2005, No. 2 http:// www.migrationpolicy.org/pubs/MPI_PB_6.05.pdf.......................................22 Declaration of Miguel A. Pérez Vargas …...................................................19 Declaration of Michael Fix ….....................................................................21 Declaration of Dr. Rosa Castro Feinberg ……………………………........23 Douglas S. Massey, Five Myths about Immigration: Common Misconceptions Underlying U.S. Border-Enforcement Policy, Immigr. Daily, Dec. 7, 2005 Available at http://www.ilw.com/ articles/2005,1207-massey, cited in Jorge Chapa, A Demographic and Sociological Perspective on Plyler’s Children, 1980-2005, Northwestern Journal of Law and Social Policy (2008)………………………………………23-24
iv
Jaclyn, Zubrzycki, Ala. Immigration Law Puts Squeeze on Schools, http:// www. edweek.org/ ew/articles/2011/10/07/07 immigrants_ep.h31.html…………………………………………………18 James Gimpel and James Edwards, The Congressional Politics of Immigration Reform Boston (1998) ……………………………………………………………..12 Jeffrey Passel, Unauthorized Migrants: Numbers and Characteristics, 18 Pew Hispanic Research Center (June 14, 2005) http://pewhispanic.org/files/reports/46.pdf ..................................................22 Judith Gans, Immigrants in Arizona: Fiscal and Economic Impacts, Udall Center for Studies in Public Policy, University of Arizona (2008) Available at http://udallcenter.arizona.edu/immigration/ publications/impactofimmigrants08.pdf. ………………………………….26 Marc R. Rosenblum, “Moving beyond the policy of no policy: Emigration from Mexico and Central America." 46 Latin American Politics and Society 91, 109 (2004) ………………………………………………..12 Patrik, Jonsson, Is Alabama Immigration Law creating a Humanitarian Crisis, http: //www. csmonitor.com /USA/2011/1006/Is-Alabama- immigration-law-creating-a-humanitarian-crisis………………………….18 Randolph Capps, Everett Henderson, John D. Kasarda, James H. Johnson, Stephen J. Appold, Derrek L. Croney, Donald J. Hernandez and Michael E. Fix, A Profile of Immigrants in Arkansas, The Winthrop Rockefeller Foundation (2007) at 5.
v
Available at http://www.urban.org/publications/411441.html …………26 Randy Capps, Everett Henderson, Jeffrey S. Passel and Michael Fix, Civic Contributions: Taxes Paid by Immigrants in the Washington, D.C. Metropolitan Area. Migration Policy Institute (May, 2006 ) Available at: http://www.urban.org/UploadedPDF/411338_ civic_contributions.pdf. ……………………………………………………26 U.S. Department of Education, Consolidated State Performance Report: Parts I and II, School Year 2009-10, Alabama. Available at http:// www2.ed.gov/admins/lead /account/consolidated/sy09-10part1/al.pdf. ……………………………24-25 U.S. Department of Education, “Dear Colleague” Letter, May 1, 1997 Exhibit A……………………………..…………………………………….13 U.S. Department of Justice and U.S. Department of Education, “Dear Colleague” Letter, May 6, 2011 Available at http://www.justice.gov/crt/ about/edu/documents/plylerletter.pdf ……………………………...13, 14, 17 U.S. Department of Education, Funds for State Formula-Allocated and Selected Student Aid Programs, Alabama . Available at http:// www2.ed.gov/about/overview/ budget/statetables/11stbystate.pdf……………………………………...14, 25 U.S. Department of Education, U.S. Secretary of Education Arne Duncan, Press Conference Call On Bullying and
vi
Harassment Guidance, Tuesday, October 26, 2010 at p. 3 Available at: http://www.sprigeo.com /pdfs/DuncanPressConferenceTranscript.pdf………………………………20 U.S. Department of Education, Summer 2010 ED Facts STATE PROFILE –ALABAMA Available at http://www2.ed.gov/about/inits/ed/ edfacts/state-profiles/alabama.pdf………………………………………….21
1
STATEMENT OF INTEREST OF THE AMICI CURIAE LULAC, the League of United Latin American Citizens, is the largest
and oldest Hispanic civil rights organization in the United States. With over
125,000 members LULAC’s membership extends into every state in the
Union and Puerto Rico with over 900 councils nationwide. LULAC’s
mission is to advance the economic condition, educational attainment,
political influence, health and civil rights of Hispanic Americans. For more
than 82 years, LULAC’s members have sought to ensure the civil rights of
Hispanics throughout the United States, and foster respect for the rule of
law. LULAC believes in the democratic principle of individual freedom and
is obligated to promote, protect and assure the constitutional and statutory
rights of all Hispanics, regardless of immigration status.
Advancing the educational attainment of the Hispanic population has
always been at the core of LULAC’s mission. Over 1.1 million Hispanic
students have benefited from a range of LULAC educational programs
including: youth leadership programs, comprehensive educational programs
that provide assistance to approximately 5% of all Hispanic students
enrolling in college, the LULAC National Scholarship Fund, a young
readers program, middle school students science corps and our parent
involvement initiative.
2
In addition, the LULAC International Embassy has worked in conjunction
with Latin American nations to provide a variety of ongoing educational and
cultural opportunities for native Spanish-speakers living in the United States.
LULAC knows from long experience that the road to equal educational
opportunities for Hispanic children in the face of discrimination often will
mean seeking vindication of constitutional and human rights in the courts. In
1945, a California LULAC Council successfully sued to integrate the
Orange County School System, which had been segregated on the grounds
that Mexican children were “more poorly clothed and mentally inferior to
white children.”
LULAC is deeply concerned and deeply impacted as an organization
by the current anti-Hispanic and anti-immigration backlash of which H.B. 56
is the most recent and pernicious example. This law threatens to deny and
frustrate the education of thousands of Hispanic children in Alabama’s
schools. LULAC believes that the law must be enjoined to prevent that from
happening and wishes to present facts and analysis to this court which it
believes will assist the court in its deliberations.
The Hispanic Association of Colleges and Universities (“HACU”) with
offices in San Antonio, TX, Sacramento, CA and Washington DC was
established in 1986 with a founding membership of 18 institutions and today
3
numbers almost 450 colleges and universities committed to Hispanic higher
education success in the U.S., Puerto Rico, Latin America, Spain and
Portugal. HACU is the only national association that represents Hispanic-
Serving Institutions (HSIs). HACU is committed to assuring higher
education access and success for Hispanic students and its regional office in
Sacramento addresses issues of policy and practice in the western region of
the U.S.
HACU is concerned that HB 56, Arizona's SB 1070, and similar
legislation poses significant barriers to Hispanic and immigrant students to
access and succeed in higher education. These barriers directly impact
HACU’s work in advancing the education of Hispanic students.
HACU has a compelling interest in seeing that HB 56 be
preliminarily enjoined and declared unconstitutional in its entirety.
Founded in 1993, the Hispanic College Fund ("HCF") is a national
non-profit organization based in Washington, D.C., with a mission to
develop the next generation of Hispanic professionals. For 18 years, the
Hispanic College Fund has provided educational, scholarship, and mentoring
programs to students throughout the United States, including Puerto Rico,
establishing a career pipeline of talented and career-driven Hispanics. HCF
accomplish his mission by providing Hispanic high school and college
4
students with the vision, resources, and mentorship needed to become
community leaders and achieve successful careers in a variety of disciplines
including business, science, technology, engineering and math. HCF is
deeply concerned that the operation of H.B. 56, and in particular Section 28,
will deter Hispanic youth from enrolling in or completing their high school
educations, thereby further reducing college-going and college graduation
rates to the detriment of our nation and frustrating the purpose for which
HCF was founded. Thus, HCF has a compelling interest in making sure that
this unconstitutional state law is not allowed to take effect.
NAFSA: Association of International Educators is the world's
largest nonprofit association dedicated to international education and
exchange. NAFSA's nearly 10,000 members are located at more than 3,500
institutions worldwide, in over 150 countries. Members of NAFSA share a
belief that international education advances learning and scholarship, builds
respect among different peoples, and encourages constructive leadership in a
global community.
NAFSA has long been an active participant in efforts to reform U.S.
immigration laws, especially those that impede the movement of people for
educational purposes. NAFSA is deeply concerned that states are creating an
unworkable patchwork of immigration laws that will have a deleterious
5
effect on international education. Of immediate concern is Alabama, where
people are living in fear, afraid to send their children to school or to report
when they are crime victims or witnesses. This climate of fear stands in stark
opposition to the ideals of the United States and the mission of NAFSA.
NAFSA thus joins with those seeking to halt the implementation of HB 56
and declare it unconstitutional.
META is a national public interest nonprofit legal organization which
was formed in 1983 for the purpose of protecting the civil rights of
immigrant and other limited English proficient students and their families.
In its nearly 30 years of advocacy, META’s attorneys have practiced before
state courts and United States District Courts and the Courts of Appeals
sitting in Massachusetts, New York, Florida, Texas, New Mexico, Colorado,
California, Kansas and elsewhere.
At the present time, META represents in excess of one million limited
English proficient students in federal court class action litigation in various
states and school districts. Among those students are some who may be
presumed to be undocumented, some who are not United States citizens but
who are legally resident in the United States and many who are U.S.
citizens. In its work, META has always sought to protect the rights of all of
6
these students to receive a free public education, to learn English, to learn
content subjects and to become productive members of society.
META is deeply concerned that until the courts find H.B. 56
unconstitutional, this “toughest in the nation” law will spawn similar laws in
other states and thereby directly harm thousands of additional children
including those META already represents as class members. In particular,
META is concerned that H.B.56 may have a harmful impact on Latino,
limited English proficient and undocumented students in the neighboring
state of Florida where META represents a statewide class of students, some
of whom may wish to travel to Alabama and whose families might wish to
relocate to Alabama.
In addition, META was recently contacted by representatives of
immigrant families in the Albertville-Boaz area who sought to speak with
one of our advocates about the impact of H.B. 56 on their families. On July
9, a META attorney met with approximately 60 Latino immigrant families at
a church in Albertville at which time the families explained their concerns
that H.B. 56 might result in their children having to withdraw from school or
face harassment at school. The families requested that META help convey
these concerns to the court.
7
The parties have consented to the filing of this brief. No counsel for a
party authored this brief in whole or in part and no other than amici and their
counsel made a monetary contribution to its preparation or submission. See
Fed.R.App.P 29(c)(5).
ARGUMENT
I. Federal Law Has Spoken Clearly with Regards to Elementary and Secondary Education and Pre-Empts Section 28
Under Section 28, every public elementary and secondary school in
Alabama must determine the immigration status of every child who “was
born outside of 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 A Second Language class or other remedial program.” Failure of
parents to provide proof of legal status to school officials leads to a
presumption of unlawful presence. The names of students and parents thus
identified may be sent to Federal immigration authorities and, upon a waiver
granted by the state Attorney General, may be publically disclosed. Section
28(e). When Section 28 is read in conjunction with Section 13 (a)(3) of
H.B. 56, Section 28 appears to make it a criminal act for a school bus driver
or other school staff member involved in transporting students to transport
identified undocumented students to school or their parents to school events.
8
The premise for these provisions, which obviously will deter
immigrant students from attending public school, is apparently the
unsupported legislative finding 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” (Section 2).
These provisions squarely conflict with federal immigration policies
as articulated for at least the last 15 years in statute, regulation and policy
guidance.
In 1982, the U.S. Supreme Court considered a Texas law that withheld
state funds from local school districts for the education of undocumented
school children and that authorized local school districts to deny enrollment
in their schools to such children. The case raised issues of both pre-emption
and Equal Protection of the laws. The Court found that the Texas statutes
violated the Equal Protection rights of the schoolchildren but no decision
was reached on the question of federal pre-emption. See Plyler v. Doe, 457
9
U.S. 202, 210 n. 8 (1982). In weighing the constitutionality of the Texas
statute, the Court looked to see whether there was any expression of relevant
federal immigration policy touching on K-12 public education. The Court
could find: “no identifiable congressional policy…no national policy…” that
was “discernible in the present legislative record.” Id. at 225-226.
Concurring, Mr. Justice Powell also noted that there was: “no comparable
federal guidance in the area of education. No federal law invites state
regulation; no federal regulations identify those aliens who have a right to
attend public schools.” Id. at 242.
Fourteen years later Congress established just such a policy by
enacting comprehensive legislation that covered the eligibility of aliens for a
wide range of federal and state benefits. The legislation, codified as the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), P.L. 104-193, Aug. 22, 1996, 110 Stat. 2260, included inter
alia, a definition of “State or local public benefit” and statutory provisions
that authorized States and political subdivisions to verify the eligibility of
aliens for such benefits according to the provisions of the new law. The
definition of “State or local public benefit” does not include basic K-12
10
public education. See 8 U.S.C. §1621(c)(1)(B). 1 A separate provision of
the law, 8 U.S.C. §1643(a)(2), did address basic K-12 public education. The
section states that: “Nothing in this chapter may be construed as addressing
alien eligibility for a basic public education as determined by the Supreme
Court of the United States under Plyler v. Doe, 457 U.S. 202(1982)”. Put
simply, Congress acted to limit and/or require verification for a wide range
of State and local public benefits but expressly left untouched basic public
education.
The same conclusion was reached by the court in League of United
Latin American Citizens v. Wilson, 908 F.Supp. 755, 774 (C.D.
Cal.,1995)(“LULAC I”). That case concerned California’s Proposition 187
which, in part, required verification of the immigration status of the parents
of school children. In a first round, LULAC I, the court had found that the
verification provision was “part of an impermissible scheme to regulate
immigration and…therefore preempted under the first DeCanas test.” In
further litigation following the 1996 enactment of PRWORA the court found
1 Defining benefits, in part, to include “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or other similar benefit…” Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (referred to also as “PRWORA” or “PRA”).
11
that the federal statute: “expressly defers to Plyler v. Doe” citing Section
1643 which “does specifically deal with the subject of basic public
education.” League of United Latin American Citizens v. Wilson, 997 F.
Supp. 1244, 1255-56 (C.D. Cal.,1997)(“LULAC II”). 2
Moreover, had Congress meant to allow limitations or immigration
verification for K-12 basic education it would have done so because just
such a limitation was before the Congress. H.R. 4134, an act “Authorizing
States To Disqualify Certain Aliens Not Lawfully Present in the United
States From Public Education Benefits”, also known as the Gallegly
Amendment (after its principal sponsor, Rep. Elton Gallegly of California)
was introduced in 1996. Section 601(a) of the Gallegly Amendment
included findings similar, indeed nearly identical, to the language of H.B.
56, Section 2 about alien children whose education “depletes States’ limited
2 In its recent decision in Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968,1987 (2011), the Supreme Court found that Arizona was not preempted from acting in the area of employment pursuant to its licensing laws because those laws: “fit(s) within the confines of IRCA’s savings clause” . In the instant situation, Section 28 treads into an area, basic public education for immigrant children that Congress has exempted from requirements that govern public benefit determinations and immigration status verifications.
12
educational resources” and specified procedures for screening such
children.3
The Gallegly Amendment passed the U.S. House of Representatives
but failed in the U.S. Senate and did not become law. Its failure, taken
together with the passage of 8 U.S.C. § 1643(a)(2), defines the “identifiable
congressional policy” and legislative record that was lacking in 1982. There
is now Congressional policy. Immigrant students, including undocumented
immigrant students, are entitled to basic K-12 public education. A state
provision requiring that students be screened and identified on the basis of
immigration status has been pre-empted by congressional action. 4
In a parallel, and additional, Federal policy statement on K-12
education and student immigration status verification a “Dear Colleague”
3 Sections 601 (a) and 602 (c) of H.R. 4134. 4 Commentators have written about the history of the Gallegly Amendment and some have noted a nexus between the ultimate defeat of the Amendment and President Clinton’s concerns of its impact on foreign policy governing relations with Mexico. See, Marc R. Rosenblum, “Moving beyond the policy of no policy: emigration from Mexico and Central America." 46 Latin American Politics and Society 91, 109 (2004). See also, James Gimpel and James Edwards, The Congressional Politics of Immigration Reform. Boston (1998).
13
letter was sent to State Departments of Education on May 1, 1997 from the
U.S. Department of Education. The letter focused on section 625 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, PL
104-208m (1996) concerning verification of foreign students F-1 status. The
letter indicates that the U.S. Department of Education, Department of State
and the Immigration and Naturalization Service consulted in determining the
attached advice. The letter states: “Moreover, it should be emphasized,
Section 625 does not affect immigrant students who are residing in a school
district in the United States (citing Plyler v. Doe)… Section 625 does not
constitute a basis for requiring students to verify alien or citizenship status.”
(Emphasis in original). (Exhibit A, “Dear Colleague” letter, May 1, 1997).
More recently the U.S. Department of Justice and U.S. Department of
Education issued a Dear Colleague letter (May 6, 2011). The letter
expresses concern over “student enrollment practices that may chill or
discourage the participation, or lead to the exclusion of students based on
their or their parents’ or guardians’ actual or perceived citizenship or
immigration status. These practices contravene Federal law.” Specifically
enumerated as an example of what school districts may not do in reviewing
student residency is the immigration status questioning of the type required
by Section 28. The two federal agencies state: “ While a district may
14
restrict attendance to district residents, inquiring into students’ citizenship or
immigration status or that of their parents or guardians would not be relevant
to establishing residency within the district.” Id. 5 6
The federal government has spoken clearly and repeatedly. The
Supreme Court of the United States in the Plyler decision, the Congress in
Title 8 of the U.S. Code, the federal agencies charged with enforcing the
immigration laws and the civil rights enforcement agencies of the Justice
and Education Departments have made it clear that undocumented school
children have the right to attend elementary and secondary school and to do
so unimpeded by immigration status verifications. Section 28 has been
preempted and is therefore an unconstitutional state law that treads
impermissibly into the authority of the United States.
5 http://www.justice.gov/crt/about/edu/documents/plylerletter.pdf 6 The May 6, 2011 letter was premised in part on the prohibition of national origin discrimination by recipients of Federal financial assistance. In 2010, Alabama received approximately $ 685,341,362 in Federal public elementary and secondary education assistance for its students, including its immigrant students. U.S. Department of Education, Funds for State Formula-Allocated and Selected Student Aid Programs, U.S. Department of Education Funding, Alabama available at www2.ed.gov/about /overview/budget/statetables/11stbystate.pdf.
15
II. Section 28 Violates the Rights of Undocumented Schoolchildren and their U.S. Citizen Siblings Under the Equal Protection Clause of the Fourteenth Amendment
Section 28 is preempted by fifteen years of federal immigration
policies which require granting the injunctive relief sought by the plaintiffs.
Such relief is also required under the Plyler decision itself to prevent
curtailment of the Fourteenth Amendment Equal Protection rights of
schoolchildren in Alabama for this school year.
As described above, Section 28(a)(1) requires every public elementary
and secondary school to inquire into the immigration status of enrolling
children and identify children who were born outside the United States or
are the children of an alien not lawfully present. School officials must also
determine whether enrolling students: “qualify for assignment to an English
as Second Language class or other remedial program.” If parents do not
present immigration status documentation that the schools consider to be
satisfactory, school officials: “shall presume for the purposes of
reporting…that the student is an alien unlawfully present in the United
States.” Section 28(a)(5). The names of students and parents thus identified
may be sent to federal immigration agencies and, upon obtaining a waiver
from the state Attorney General, publically disclosed. Section 28(e). A
companion section of H.B. 56 makes it a crime for a person to transport an
16
alien: “…in reckless disregard of the fact, that the alien has come to, entered,
or remained in the United States in violation of federal law.” Section
13(a)(3). The provision does not exempt school employees who normally
transport school children to and from school and/or their parents to school
functions.
The sole explanation for these provisions are found in two sentences
in Section 2 of H.B. 56. The first sentence seeks directly to control
immigration through requiring verifying of immigration status: “ 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.” The second sentence seeks to link the immigration
status of some immigrant school children with the theoretical cost impact on
public education of their instruction: “ 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 provisions of Section 28 are intended to and will deter immigrant
parents from registering their children for school. It is not possible to view
17
§28 apart from the Act of which it is a part. The preamble of H.B. 56
provides the foundation of the entire Act, including §28. Given that public
elementary and secondary education undoubtedly provides a public benefit
available to undocumented immigrants, it is disingenuous, at best, to suggest
that §28 should be viewed any way other than targeted on aliens. Indeed,
the determination of immigration status at the schoolhouse door is precisely
the type of practice that the U.S. Departments of Justice and Education have
recently warned against as violative of Plyler, practices that: “may chill or
discourage the participation, or lead to the exclusion, of students based on
their or their parents’ or guardians’ actual or perceived citizenship or
immigration status, “available at http://www.justice.gov/crt/about/edu/
documents/ plylerletter.pdf. Indeed, the website of the Alabama Department
of Education posted the State EL Policy & Procedures Manual, which “is an
outgrowth of the Alabama Department of Education’s voluntary agreement
with the U.S. Department of Education, Office for Civil Rights (Compliance
Review #04-98-5023), for providing services to students who are English
language learners (ELLs)” and then recognized that, Plyler v. Doe bars
“public schools (from) require(ing) students or parents to disclose or
document their immigration status” or “mak(ing) inquiries of students or
parents that may expose their undocumented status.” Id. available at
18
http://alex.state.al.us/ell/?q=node/27 and http://alex.state.al.us/ell/node/58.
(last visited July 21, 2011).
It is obvious that a currently undocumented parent or the parent of a
child currently undocumented would realize that setting foot into a
schoolhouse and approaching the registration desk could well be the first
step, not towards an education and better future for their child, but for
deportation. Section 2, as stated, seeks the end of undocumented
participation in it school system. We have since learned that H.B. 56 in
general and §28 in particular has fed the fear of which we speak and has
gone a long ways to the accomplishment of this end. 7 The State knew that
this would occur as anyone passably familiar with undocumented
immigration, or who could put themselves in the shoes of such an immigrant
could have predicted . It is no accident that the core cases establishing the
7 See Campbell, Robertson, After Ruling, Hispanics Flee an Alabama Town, http://www.nytimes.com/2011/10/04/us/after-ruling-hispanics-flee-an-alabama-town.html?pagewanted=all; David, Martin, Hispanic Students Vanish from Alabama Schoos, http:// www.usatoday. com/news/nation/story /2011-09-30 / alabama-immigration/50619602/1; Jaclyn, Zubrzycki, Ala. Immigration Law Puts Squeeze on Schools, http:// www. edweek.org/ ew/articles/2011/10/07/07 immigrants_ep.h31.html; Associated Press, Hispanic Students Vanish from Alabama, http:// www. suntimes. com/news/nation/7974307-418/hispanic-students-vanish-from-alabama-schools.html; Patrik, Jonsson, Is Alabama immigration Law creating a Humanitarian Crisis, http://www.csmonitor.com/USA/2011/1006/Is-Alabama-immigration-law-creating-a-humanitarian-crisis
19
rights of these children proceded under pseudonyms despite the presumption
against proceeding thusly. Plyler v. Doe and In re Alien Children, 457 U.S.
202, 1102 S.Ct. 2302 (1982) could not have proceded if undocumented
children had to disclose their identities. Nor, does the normal Federal
judicial deference to state legislative findings require the Court to blinker
itself from the unmistakable purposes of H.B. 56’s authors, quite simply to
drive those believed to be unlawful immigrants out of Alabama. (See
Compl. ¶¶ 179-192, Doc. 2484: 37)
The parents of undocumented school children and the undocumented
parents of U.S. citizen school children affected by Section 28 have movingly
described in their declarations the fears they now have about enrolling in
school this fall. 8 As one parent put it: “My 9 year old daughter is
traumatized by what she hears at school...She started coming home from
school and telling me that other children said that her parents will be arrested
by immigration officials or stopped at police checkpoints…I am deeply
8 Complaint, Ex. 25, Jane Doe #1Decl. ¶¶1,8 (Doc. 2484: 37-25); Ex. 26, Jane Doe #2 , Decl. ¶9(Doc. 2484: 37-26); Ex. 27, Jane Doe#3 Decl.¶¶2,8 (Doc. 2484: 37-27); Ex. 28, Jane Doe#4, Decl. ¶¶2,5(Doc. 2484: 37-28); Ex. 29, Jane Doe#5, Decl. ¶6 (Doc. 2484: 37-29); Ex. 32, John Doe#2, Decl. ¶¶2, 5-7(Doc. 2484: 37-32). Exhibit B, Declaration of Miguel Perez Vargas. ¶¶3-4.
20
worried about the toll this is taking on my daughter” 9 Another student, an
11th grader with a 3.6 GPA who is active in ROTC, now fears that his school:
“would know I was undocumented and they would have me marked…they
might try to retaliate against me. I would be in a constant state of worry and
fear.” 10 U.S. Education Secretary Arne Duncan has observed: “Students
simply cannot learn if they feel threatened or harassed or in fear.” 11 The
Secretary’s comment aptly describes the fear of the children described in the
instant case.
Because Sections 28 and Section 13 so obviously deter undocumented
school children and the U.S. citizen children of undocumented parents from
risking school enrollment, these provisions violate the rights of those
children to receive elementary and secondary education as set forth in
Plyler. Of course there will be factual differences that can be drawn
between Texas at the time of the Plyler decision in 1982 and Alabama today. 9 Complaint, Ex. 25, Jane Doe #1, Decl. ¶8. (Doc. 2484: 37-25) 10 Complaint, Ex. 31, John Doe #1 Decl.¶¶3-4,13. (Doc. 2484: 37-31) 11 U.S. Department of Education, U.S. Secretary of Education Arne Duncan, Press Conference Call On Bullying and Harassment Guidance, Tuesday, October 26, 2010 at p. 3 available at: http://www.sprigeo.com /pdfs/Duncan PressConferenceTranscript.pdf.
21
That said, salient essential facts are important to understanding how weak
are the fig leaf “findings” of Section 2.
To the extent that H.B. 56 is motivated by concerns over ESL
instruction to undocumented children, those concerns are unfounded. As an
initial matter, the population of Limited English Proficient (LEP) children in
Alabama is comparatively small. Reports of the United States Department
of Education show that as of 2010, there were approximately 19,500 Limited
English Proficient children in Alabama elementary and secondary schools,
or 2.6% of the total student enrollment of 745,668. 12 Moreover, analysis
of U.S. Census data indicates that a majority of the LEP students in K-12
public schools in Alabama as of 2009 were United States citizens and 83%
of children of immigrants in Alabama who are under the age of 18 are
United States citizens. Declaration of expert Michael Fix (Attached as
Exhibit C). Other researchers have found that nationwide for families in
which the head of household is undocumented, two-thirds of the children are
12 U.S. Department of Education. Summer 2010 ED Facts STATE PROFILE –ALABAMA available at http: //www2.ed.gov/about/inits /ed/edfacts/state-profiles/alabama.pdf.
22
US citizens, one-third are undocumented. 13 The Census analysis is
buttressed by record evidence in this case from parents who have described
the composition of their families with some children who are U.S. citizens
and with brothers and sisters who are currently undocumented. 14 The target
of Section 28 is, therefore, at the most, limited to 1% of the total student
population. They are, in all likelihood, the siblings of U.S. citizen children.
But even that overstates the legislature’s quarry because many
undocumented students and their parents will eventually have their statuses
adjusted. 15
More importantly, these undocumented children are, as found by the
Court in Plyler, “basically indistinguishable” from legally resident alien
13 Jeffrey Passel, Unauthorized Migrants: Numbers and Characteristics, 18 Pew Hispanic Research Center (June 14, 2005) available at http://pewhispanic. org/files/reports/46.pdf. 14 See Complaint Ex. 25, Jane Doe #1 Decl. ¶1 (Doc. 2484: 37-25); Ex. 28, Jane Doe #4 Decl. ¶¶1-2 (Doc. 2484: 37-28); Ex. 32, Jane Doe #2 Decl. ¶2 (Doc. 2484: 37-32). 15 David A. Martin, Twilight Statuses: A Closer Examination of the Unauthorized Population. MPI Policy Brief, June 2005, No. 2. available at http://www.migrationpolicy.org/pubs/MPI_PB_6.05.pdf.
23
children in terms of educational cost and need. Id. at 229. There is no
legislative finding to the contrary and, as made clear from the expert
declaration of Dr. Castro Feinberg (attached as Exhibit D), the Plyler finding
remains accurate. Based on some 40 years of experience with the education
of ELL students in Florida, Dr. Castro Feinberg states that: “At the heart of
any ELL program are trained teachers and staff, appropriate curricular
materials, and well designed assessment and support services.” However,
these needs, and the resources which they require, describe “what is needed
for all ELLs including…those who are United States citizens.” She
concludes: “Educational need and addressing educational need among ELLs
is simply not correlated to immigration status.” (Exhibit D, Decl. of Dr. Rosa
Castro Feinberg at ¶¶9-14).
Moreover, any implication in H.B. 56 that parents brought their
undocumented children to Alabama to avail themselves of ESL instruction
and public education is a myth. Leading scholars of immigration patterns
have found that access to government benefits is not a motive for
undocumented migration and that only 10 percent of Mexican immigrants
say they have ever sent a child to U.S. public schools. 16
16 Douglas S. Massey, Five Myths about Immigration: Common Misconceptions Underlying U.S. Border-Enforcement Policy, Immigr. Daily,
24
Furthermore, Alabama has consistently benefited from federal funding
for ESL programming. In 2010 Alabama received approximately $ 3.8m
from the United States Department of Education through the Title III, No
Child Left Behind grant program, a program designed specifically for
Limited English Proficient students. 17 According to the state’s
Consolidated State Performance Report, SY 2009-2010, the state passed on
federal Title III funds to 52 school districts which enabled the training of
LEP classroom teachers, regular content classroom teachers and other staff.
Nearly all of the teachers receiving federally funded training were regular
classroom teachers. Of LEP children tested, 80.5% were reported as making
progress in learning English and 48% had attained proficiency in English.
Alabama estimated that it would need only 267 more certified/licensed
teachers for its ELL students in the next 5 years. 18 Title III funds were
Dec. 7, 2005, available at http://www.ilw.com/articles/2005,1207-massey, cited in Jorge Chapa, A Demographic and Sociological Perspective on Plyler’s Children, 1980-2005, Northwestern Journal of Law and Social Policy (2008). 17 U.S. Department of Education. Funds for State Formula-Allocated and Selected Student Aid Programs, Alabama. available at http://www2.ed. gov/about / overview/budget /statetables/11stbystate.pdf. 18 U.S. Department of Education, Consolidated State Performance
25
only a part of the nearly $ 700m in federal funding for elementary and
secondary education programs in Alabama, programs in which LEP students
participate. 19
Furthermore, immigrant families themselves support public education
in Alabama. The largest sources of the state’s Education Trust Fund are the
income tax, sales tax and utility tax which account for in excess of 90% of
its revenues. 20 Of course, immigrants, including undocumented immigrants
pay these same taxes as do other Alabamans. The Supreme Court found in
Plyler that undocumented aliens: “underutilize public services, while
contributing their labor to the local economy and tax money to the state
fisc.” Id. at 228. At the state level, a recent detailed analysis of the impact of
immigrants in Arkansas likewise found that the costs of services for
immigrants, taking into account the costs of education, health services and
Report: Parts I and II, School Year 2009-10, Alabama. available at http://www2.ed.gov/admins/lead/account/consolidated/sy09-10part1/al.pdf. 19 See U.S. Department of Education federal funds for Alabama, data at footnote 6. 20 Alabama Department of Finance, Education Trust Fund Net Receipts Fiscal Years 2006-2007 Through 2011-2012, p. xii, available at: http://bud get. alabama.gov/pdf/fundrec/ETF_Receipts.pdf
26
corrections: “were more than balanced by direct and indirect tax
contributions” resulting in a net surplus. 21 A similar analysis in Arizona,
taking into account the fiscal costs attributable to immigrants, both
naturalized citizens and non-citizens, and their contribution as tax payers and
consumers, came to the same conclusion, finding a net fiscal contribution
generated by immigrants in that state. 22 The fact that Alabama chooses to
remove undocumented children from its schools by the indirect means of
asking about status (and collecting and reporting it to the state) rather than
directly barring the door is of no consequence. One cannot deny a
21 Randolph Capps, Everett Henderson, John D. Kasarda, James H. Johnson, Stephen J. Appold, Derrek L. Croney, Donald J. Hernandez and Michael E. Fix, A Profile of Immigrants in Arkansas, The Winthrop Rockefeller Foundation (2007) at 5. Available at http:// www.urban.org/ publications /411441.html. 22 Judith Gans, Immigrants in Arizona: Fiscal and Economic Impacts, Udall Center for Studies in Public Policy, University of Arizona (2008). Available at http :// udallcenter. arizona. edu/immigration /publications/ impactofimmigrants08.pdf. Yet another recent study of immigrants in the Washington, D.C. Metropolitan area found that all immigrants pay substantial shares of their incomes in taxes and in most cases those shares are close to those paid by natives. Randy Capps, Everett Henderson, Jeffrey S. Passel and Michael Fix, Civic Contributions: Taxes Paid by Immigrants in the Washington, D.C. Metropolitan Area. Migration Policy Institute (May, 2006) available at: http://www.urban.org/ UploadedPDF /411338_ civic_contributions.pdf.
27
constitutional right by indirection any more than by direct action. Whether
one characterizes the thinly disguised barrier of data collection as a “burden”
on the right of undocumented children, or as an effort to:”chill” their right to
education, should be of no moment. The placement of the barrier, certainly
known in advance as a barrier, and certainly having that effect on the right
declared in Plyler must be stricken.
In 1982 the United States Supreme Court could not find a sufficient
rational basis for a state to effectively exclude undocumented immigrant
school children from K-12 education particularly given the catastrophic
consequences of such exclusions to the immigrant children and our society
as a whole. The Court held that the Fourteenth Amendment’s requirement
of Equal Protection of the Laws would be violated. The Plyler decision
governs current consideration of Section 28. The intrusive sorting of
students according to their assumed immigration status will effectively
intimidate and exclude not only undocumented children, protected by the
Plyler decision, but their own U.S. citizen and legally resident siblings who
are the children of currently undocumented parents. No sufficient reason
exists for that to happen this school year in Alabama.
28
CONCLUSION For the foregoing reasons, Amici Curiae respectfully requests that
this Court preliminarily enjoin HB 56, and declare it unconstitutional.
Respectfully submitted this the 16th day of November, 2011 by counsel for
Amici Curiae.
/s/ Roger L. Rice __________________________ ROGER L. RICE /s/ Miguel A. Pérez Vargas ____________________ MIGUEL A. PEREZ VARGAS MULTICULTURAL EDUCATION, TRAINING & ADVOCACY (META) Inc. 240 A Elm Street, Suite 22 Somerville, MA 02144 Telephone: (617) 628-2226 Facsimile: (617) 628-0322 [email protected] [email protected] Counsel for Amici Curiae
CERTIFICATE OF COMPLIANCE
WITH RULE 32(a)
I hereby certify that the attached Amicus Curiae brief complies with the type-volume limitations of Fed.R.App.P. 32 (a)(7)(B), because it contains 5,662 words, excluding the parts of the brief exempted by Fed.R.App.P. 32 (a)(7)(B)(iii).
This Brief also complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Word version 2007 in Times New Roman 14-point font.
/s/ Roger L. Rice
__________________ Roger L. Rice
CERTIFICATE OF SERVICE
I, Roger L. Rice, hereby certify that on this 16th day of November 2011, I filed the foregoing Brief Amici Curiae Of League Of United Latin American Citizens (LULAC), The Hispanic Association Of Colleges And Universities (HACU), The Hispanic College Fund (HCF), NAFSA: Association Of International Educators (Nafsa) And Multicultural Education, Training & Advocacy Inc. (META,Inc.) In Support Of Plaintiffs Appellants, with this Court by causing the original and six paper copies to be delivered by FedEx next business day delivery. I further certify that I caused this Brief to be served for each party on the following counsel by electronic mail, and by hard copy via U.S. First Class Mail:
Luther Strange Attorney General Office of the Alabama Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 [email protected]; [email protected] Michael P.Abate Daniel Tenny United States of America Civil Rights Division, Room 7215 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 [email protected] [email protected] Mary Bower Samuel Brooke Southern Poverty Law Center 400 Washington Ave. Montgomery Alabama 36104 [email protected]; /s/ Roger L. Rice _________________________________
Roger L. Rice
J.R. Brooks Taylor P. Brooks Lanier Ford Shaver & Payne, PC 2101 Clinton Ave. W STE 102 P.O. Box 2087 Huntsville, AL 35804-2087 [email protected]; [email protected]